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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


CHICAGO   STAP 
BINDERY 
224  S.  Spring  St.,   L 
T«l.  Mutual  443<< 


LAW    LIBRARY 

OF 
LOS  ANGELE/I^  ^  0  JyJTY 


Digitized  by  tine  Internet  Archive 

in  2008  witii  funding  from 

IVIicrosoft  Corporation 


littp://www.arcliive.org/details/businessmenslawsOOIinc 


1920 


BUSINESS 


OF  CALIFORNIA 

COMPILED  FROM   THE  STATUTES 
AND   COURT   DECISIONS 

By 
WALTER  GOULD  LINCOLN 

OF  THE 
LOS   ANGELES   BAR 


Compiler  of 

"California  Laws,"  1911 

"Laws  of  Real  Estate  in  California,"  1913 

"Uniform  Negotiable  Instrument  Law   (Annotated),"  1917 


Price  $4.50  Net 


Copyrighted,    1920 
WALTER  GOULD  LINCOLN 


T 


> 


FOREWORD 


^ 


The  laws  of  California  are  contained  in  the  Constitution,  the 
Codes,  the  Statutes  and  the  decisions  of  the  Supreme  and  Appelate 
Courts. 

The  Civil  Code  has  3543  sections,  the  Code  of  Civil  Procedure  has 
2104,  regulating  the  method  of  trying  actions  at  law;  the  Political 
Code  has  4605;  the  Penal  Code  has  1616;  the  General  Laws  com- 
prise about  1500  pages,  contained  in  one  volume;  the  Statutes,  in 
addition  to  these,  are  laws  which  are  not  numbered,  but  v/hich,  since 
1850,  probably  have  about  600  laws  now  in  force,  unrepealed.  At 
present  there  are  180  volumes  of  Supreme  Court  decisions,  and  40 
volumes  of  Appelate  Court  decisions,  probably  60,000  cases  decided 
altogether.  A  grand  total  of  about  13,000  laws,  and  60,000  cases 
based  upon  them. 

You  can  readily  see  that  no  one  book  can  contain  all  the  law,  nor 
even  all  the  law  on  any  large  subject.  In  this  book  I  have  endeav- 
ored to  give  the  gist  of  the  laws,  in  language  which  is  not  technical, 
and  which  can  be  understood  by  one  who  is  not  a  lawyer. 

Every  statement  in  this  book  has  an  authority  for  it,  to  be  found 
in  some  of  these  volumes  of  California  Laws.  If  all  these  author- 
ities were  given,  too  much  valuable  space  would  be  taken  up — 
which  might  better  be  used  for  any  other  laws  of  interest.  Yet,  if 
any  reader  wishes  to  know  the  source  of  any  sentence  or  law  con- 
tained in  this  book,  I  will  be  glad  to  give  it  upon  request,  freely. 

The  book  is  not  perfect.  No  book  is.  It  is  not  complete.  No  law 
book  can  ever  be.  It  may  have  errors.  Every  lawyer  makes  them, 
and  even  the  Supreme  Court  has  reversed  itself — for  man  is  fallible. 
But  if  the  reader  will  find  in  its  pages  one  bit  of  legal  knowledge 
which  he  did  not  have  before,  and  can  save  himself  any  troubles,  or 
correct  any  difficulties  by  so  doing — the  book  will  be  a  success. 

And,  with  that  hope,  the  book  goes  forth. 

WALTER  GOULD  LINCOLN. 
American  Bank  Building 
Los  Angeles,  California 


7352 


CALIFORNIA  LAW 


Abstract  of  Title:     See  Real  Estate. 

Abandonment:     See  Insurance. 

Acceptance:  See  Negotiable  Instruments,  113213,  3214,  3220, 
3221,   3222,   3223,   3243,   3244. 

Acceptor:     See  Negotiable  Instruments,  1|3143,  3144. 

Accession:     See  also  Real  Estate;  Personal  Property;  Liens. 

When  things  belonging  to  different  owners  have  been  united  so 
as  to  form  a  single  thing,  and  cannot  be  separated  without  injury, 
the  whole  belongs  to  the  owner  of  the  thing  which  forms  the  prin- 
cipal part;  he  must,  however,  reimburse  the  value  of  the  remainder 
to  the  other  owner,  or  surrender  the  whole  to  him. 

The  principal  part  is  that  to  which  the  other  has  been  united  for 
the  use,  ornament,  or  completion  of  the  former,  unless  the  latter 
is  the  more  valuable  and  has  been  united  without  the  consent  of 
the  owner.  In  such  case,  the  owner  may  require  it  to  be  separated 
and  returned  to  him,  although  sole  injury  should  result  to  the 
thing  to  which  it  had  been  united. 

If  neither  can  be  considered  the  principal  part,  then  the  more 
valuable  is  to  be  deemed  the  principal  part;  or,  if  the  values  are 
nearly   equal,   that  thing  which   is   the   more   considerable   in   bulk. 

If  one  makes  a  thing  from  materials  belonging  to  another,  the 
latter  may  claim  the  thing  on  reimbursing  the  value  of  the  work- 
manship— unless  the  value  of  the  workmanship  exceeds  the  value 
of  the  material- — in  which  case  the  thing  itself  belongs  to  the 
worker,  on  paying  the  value  of  the  material. 

Where  a  person  has  made  use  of  materials  which  belong  partly 
to  him  and  partly  to  another,  and  has  formed  a  thing  of  a  new 
description  without  having  destroyed  any  of  the  material,  but  in 
such  a  way  that  these  materials  cannot  be  separated  without  in- 
convenience— the  thing  so  formed  belongs  to  both  persons;  but  in 
proportion — as  the  value  of  the  material  is  to  one,  and  as  the 
value  of  material  and  his  workmanship  is  to  the  other. 


ACCIDENT 


When  a  thinj?  has  been  formed  by  the  mixture  of  several  ma- 
terials of  different  owners,  and  none  of  these  can  be  considered 
the  principal  substance,  an  owner  v/ithout  whose  consent  the  mix- 
ture was  made,  may  require  that  the  materials  be  separated — if  it 
can  be  done  without  inconvenience.  If  this  cannot  be  so  done,  then 
all  the  owners  own  the  thing  in  common — each  in  proportion  to 
the  quantity,  quality  and  value  of  their  materials;  but  if  the  ma- 
terials of  one  were  far  superior  to  those  of  the  other,  both  in 
quantity  and  value,  this  owner  may  claim  the  entire  thing  upon 
paying  to  the  others  the  value  of  their  materials.  This  paragraph 
applies  only  to  cases  vv^here  one  has  used  materials  with  the  consent 
of  the  owner.  If  the  owner  had  not  consented,  then  the  product 
belongs  to  him,  if  he  can  be  found. 

In  all  canes  where  one  whose  material  has  been  used  without  his 
knowledge  (in  order  to  form  a  product  of  a  different  description) 
can  claim  an  interest  in  such  product — he  has  an  option  to  demand 
either  restitution  of  his  material  in  kind  (the  same  quality,  quan- 
tity, weight,  measure)  or  the  value  of  it;  and  has  the  same  option 
to  demand  the  value  of  the  product,  or  the  product  itself — in  cases 
where  he  is  entitled  to  the  product.      (See  Conversion.) 

One  v/ho  wrongfully  employs  materials  belonging  to  another,  as 
above,  is  liable  in  damages  as  Avell  as  under  the  conditions  described. 

Accessory  Before  the  Fact:  There  is  no  suoh  distinction  in  our 
law;  all  such  persons  are  principals  in   crime. 

Accessory  After  the  Fact:  Is  one,  who,  after  knowledge  of  the 
commission  of  felony,  conceals  it  from  the  magistrate,  or  protects 
the  person  charged  with  the  crime.  But  "mere  silence  is  not 
enough;  there  must  be  some  affirmative  act." 

Accident:      See  Act  of  God;  Bill   of  Lading,   2130b;   Carriers. 

The  following  have  been  considered  by  our  Supreme  Court  to  be 
accidents — such  as  to  allow  compensation  under  the  "Employers' 
Liability  Law"   (which  see)  : 

Pulling  out  a  timber;  bite  of  a  cat  kept  by  employer;  being 
struck  by  lightning  when  on  a  high  scaffold;  being  hit  by  a  stone 
thrown  by  a  boy  onto  an  engine,  hitting  a  ca.shier  traveling  with 
his  employers'  money.- 

These,  however,  are  not  such  as  to  be  considered  accidents:  Be- 
ing struck  by  a  piece  of  iron  thrown  by  a  boy  in  anger;  fright  at  in- 
sect; felonious  assault  of  employer;  sting  from  a  wasp;  frost  bite; 


ACCOUNT 


bein,<^  shot  when  gambling  during  work  hours;  falling  from  quay 
on  shore  leave;  being  struck  in  the  eye  by  a  trick  camera;  falling 
down  stairs  when  tickled  in  fun  by  fellow  employee;  gradual  loss 
of  eyesight  when  using  wood  alcohol  in  spray. 

Accommodation  (Maker,  Party  or  Endorser):  See  Negotiable 
Instruments,  113110,  3145. 

Accord  and  Satisfaction:  If  a  debt  or  claim  be  disputed  at  the 
time  of  payment,  and  the  creditor  takes  a  less  amount  than  claimed, 
even  if  the  dispute  were  unjust — this  is  an  accord  which  he  cannot 
afterward  cancel,  nor  he  be  awarded  any  more  than  the  amount  of 
the  settlement.  If  the  debtor  sends  the  creditor  a  check  for  a 
smaller  amount  than  claimed  and  writes  upon  it,  or  sends  a  letter 
at  the  same  time,  to  the  effect  that  this  check  is  in  full  settlement 
of  the  claim,  the  creditor  will  not  be  permitted  to  cash  the  check 
and  apply  the  amount  on  account — but  if  he  cashes  the  check,  he 
will  be  bound  to  accept  this  amount  as  the  full  settlement  of  the 
bill — even  though  he  did  not  mean  to  or  did  not  want  to. 

Account:  See  Limitations;  Accord  and  Satisfaction;  Sales;  Bulk 
Law;  Actions;  Attachment;  Interest. 

Account  Stated:  When  an  account  is  rendered  to  a  debtor  it 
becomes  his  duty  to  make  seasonable  objections  to  it,  if  he  has  any, 
and  if  he  does  not  do  so,  the  account  becomes  an  account  stated 
and  the  foundation  of  an  independent  cause  of  action,  which  arises 
whenever  a  reasonable  time  has  elapsed  without  any  objection 
being  made  to  it.     Twenty-five  days  may  be  enough. 

An  ACCOUNT  STATED  is  a  document — a  writing — which  ex- 
hibits the  state  of  account  between  parties  and  the  balance  owing 
from  one  to  the  other,  and  when  assented  to,  either  expressly  or 
impliedly,  becomes  a  new  contract.  An  action  on  it  is  based  upon 
this  agreed  amount;  it  can  be  avoided  only  by  averments  and  proof 
of  fraud,  mistake,  etc.  The  original  dealings  cannot  be  inquired 
into;  there  need  not  be  mutual  or  cross  accounts  or  demands  be- 
tween the  parties.  The  acknowledgment  of  a  debt,  even  though  it 
consists  of  but  one  item,  may  form  the  basis  for  an  account  stated. 

A  BOOK  ACCOUNT  is  a  detailed  statement,  kept  in  a  book,  in 
the  nature  of  debit  and  credit,  arising  out  of  contract  or  some 
fiduciary  relation.  The  book  must  show  (as  a  necessary  element) 
against  whom  and  in  whose  favor  the  charges  are  made. 


ACCOUNT 


An  OPEN  BOOK  ACCOUNT  is  one  which  is  continuous  or  current, 
uninterrupted  or  unclosed  by  settlement  or  otherwise,  consisting  of  a 
series  of  transactions;  also  one  in  which  some  item  in  the  contract 
is  left  open  and  undetermined  by  the  parties,  in  which  case  it  does 
not  matter  how  many  items  there  are;  also  an  account,  the  seller 
of  which  anticipates  further  business  dealings  with  the  buyer.  It  is 
an  unsettled  debt  arising  from  items  of  work  and  labor,  goods  sold 
and  delivered  and  other  open  transactions,  not  reduced  to  writing, 
and  subject  to  future  settlement  and  adjustment.  It  is  usually  dis- 
closed by  the  books  of  the  seller. 

The  distinction  between  an  account  stated,  and  an  open  account  is 
this;  in  the  former,  there  must  have  been  some  agreement  as  to  the 
amount — either  express  or  implied;  in  the  latter,  it  is  usually  an  ac- 
count not  agreed  upon  by  the  parties. 

ACCOUNT  BOOKS,  when  admitted  as  evidence,  must  be  books 
of  account  kept  in  the  regular  course  of  business;  it  must  be  shown 
that  the  business  is  of  such  a  character  that  it  is  proper  or  neces- 
sary to  keep  such  books;  that  the  entries  were  either  original  en- 
tries or  the  first  permanent  entries  of  the  transaction;  that  they 
were  made  at  the  time,  or  within  reasonable  proximity  to  the  time 
of  the  respective  transactions;  that  the  person  making  them  had 
personal  knowledge  of  the  transaction  or  obtained  such  knowledge 
from  a  report  regularly  made  to  him  by  some  person  employed  in 
the  business  whose  duty  it  was  to  make  the  same  in  the  regular 
course  of  business. 

A  CURRENT  ACCOUNT  is  one  consisting  of  items  of  different 
dates. 

MUTUAL,  OPEN  and  CURRENT  ACCOUNTS  are  those  where 
parties  have  dealt  together,  selling  and  buying  from  each  other. 
Their  demands  must  be  reciprocal;  that  is,  they  must  be  of  such  a 
nature  that  each  party  has  an  immediate  right  of  action  against 
the  other.  Where  one  sells  to  another  from  time  to  time — this 
does  not  constitute  such  an  account;  nor  do  items  all  on  one  side 
of  the  ledger. 

Accountant:  No  person  shall  be  allowed  to  hold  himself  out  or 
advertise  as  a  public  acountant  unless  he  shall  have  an  unrevoked 
license  so  to  do  from  the   State  Board  of  Accountancy. 

Accretions:      See  Real  Estate;    (Compare  Accession). 

Acknowledgments:      See  Real  Estate. 


ACKNOWLEDGEMENT 


Acknowledgment — To  acknowledge  an  instrument  is  to  appear 
and  admit  or  avow,  under  oath,  before  a  proper  officer  or  court, 
that  the  person  so  appearing  and  taking  the  oath  is  the  person  who 
executed  the  instrument,  and  that  he  authorized  it  to  be  done  and 
subscribed  for  him,  for  the  purpose  of  having  a  certificate  attached 
which  will  qualify  the  instrument  to  be  admitted  in  evidence,  or  to 
be  recorded,  or  both,  without  further  proof  of  genuineness. 

Before  a  deed,  or  contract  of  sale  of  real  property,  or  other 
instrument,  can  be  recorded,  it  must  be  acknowledged  or  proved 
before  a  person  authorized  by  law  to  take  such  acknowledgment  or 
proof.  The  instrument  can  then  be  presented  to  the  county  re- 
corder to  be  spread  upon  the  public  records  at  any  time  there- 
after whenever  it  may  be  desired  to  do  so. 

The  proof  or  acknowledgment  of  an  instrument  may  be  made  at 
any  place  within  this  state  before  a  justice  of  the  supreme  coiirt, 
or  a  clerk  of  the  same,  or  a  judge  of  a  superior  court.  Within 
the  ■  city,  county,  city  and  county,  or  township,  for  which  the 
officer  was  appointed  or  elected,  before  either  a  notary  public,  a 
justice  of  the  peace,  a  county  recorder,  a  court  commissioner,  a 
clerk  of  a  court  of  record.  Or,  when  any  of  the  officers  men- 
tioned are  authorized  by  law  to  appoint  a  deputy,  the  acknowl- 
edgment or  proof  may  be  taken  by  such  deputy,  in  the  name  of 
his  principal. 

Every  legislature  has  been  in  the  habit  of  passing  what  is  known 
as  validating  acts,  which  validate  any  defects  in  the  acknowledg- 
ments of  an  instrument  which  has  been  at  that  time  copied  into 
any  proper  book   of   record   in   the   office   of   any   county   recorder. 

Act:  Is  a  statute  or  law  made  by  a  legislative  body — such  as  a 
city  council,  or  assembly  of  the  state.      (Compare  Law.) 

Act  of  God  (Compare  Accident)  is  something  in  opposition  to 
the  act  of  man ;  for  everything  is  the  act  of  God  that  happens  by 
His  permission — but  refers  more  particularly  to  such  acts  as  could 
not  happen  by  the  intervention  of  man — as  storms,  lightnings,  tem- 
pests. The  expression  excludes  the  idea  of  human  agency;  and  if  it 
appears  that  a  given  loss  has  happened  in  any  way  through  the  in- 
tervention of  man,  it  cannot  be  held  to  have  been  the  act  of  God. 

A  fire  which  destroys  a  building  is  not  an  Act  of  God,  unless 
caused  by  lightning  or  some  other  superhuman  agency. 


10  ACTION 


Actions:  See  Adverse  Possession;  Arrest;  Compromise;  Con- 
version; Courts;  Attachment;  Appeals;  Deficiency;  Deposition;  De- 
mand; Damages;  Judgment;  Jury;  Liens;  Limitations;  Real  Estate; 
Unlavi'ful  Detainer;  Subpoena;  Claim  and  Delivery. 

A  civil  action  in  any  court  is  commenced  by  filing  a  paper  called 
a  complaint.  This  is  a  narration  of  the  circumstances  about  which 
the  plaintiff  complains  to  the  court  of  the  offense  which  he  con- 
siders the  defendant  has  done  to  him,  and  in  which  he  asks  that  the 
defendant  pay  that  which  he  owed,  or  the  damages  for  this  offense. 

The  COMPLAINT  should  be  written  in  as  simple  language  as 
possible,  and  state  only  the  facts  upon  which  the  plaintiff  relies 
for  his  cause  of  action — with  no  legal  conclusions,  such  as  (as 
required  by  law;  wrongfully,  unlawful;  there  is  now  due  and  ow- 
ing; groundless,  false,  wilfully;  fraudulently,  maliciously;  will 
suffer  irreparable  injury.) 

Matters  of  evidence  must  not  be  stated,  either. 

Complaints  filed  in  the  Superior  Court  must  be  sworn  to.  The 
only  complaint  in  the  Justice  Court  which  needs  to  be  sworn  to 
is  that  in  unlawful  detainer. 

At  any  time  within  a  year  after  filing  a  complaint  (but  no 
longer)  a  summons  may  be  issued  by  the  court.  This  summons 
directs  the  defendant  to  appear  before  the  court  within  a  certain 
time,  and  states  that  if  he  does  not  do  so,  the  plaintiff  will  be 
awarded  the  judgment  which  he  asks  for  in  the  complaint. 

A  copy  of  this  summons,  to  which  is  attached  a  copy  of  the  com- 
plaint, must  be  served  on  the  defendant  personally  within  three 
years  (if  the  action  is  commenced  in  the  Superior  Court)  or  within 
any  time  at  all  in  the  Justice  Court. 

If  summons  is  served  within  the  township  where  it  was  filed  (if 
filed  in  the  Justice  Court)  the  defendant  must  make  such  appear- 
tince  within  five  days  after  he  receives  such  copies;  if  served  in 
the  same  county,  then  he  must  appear  in  ten  days;  if  served  out- 
side the  county,  he  must  appear  in  twenty  days. 

In  the  Superior  Court  the  defendant  must  appear  in  ten  days,  if 
served  within  the  county  in  which  the  action  is  commenced;  and 
within  thirty  days,  if  served  outside  the  county.  (See  Publication 
of  Summons,  this  article.) 

PUBLICATION  OF  SUMMONS:  Where  a  person  on  whom 
■ervice  is  to  be  made  resides  out  of  the  state;   or  has   departed 


ACTION  11 


from  the  state;  or  cannot,  after  due  diligence,  be  found  within 
the  state;  or  conceals  himself  to  avoid  the  service  of  summons;  or 
is  a  corporation  having  no  officer  or  other  person  upon  v/hom 
summons  may  be  served,  who,  after  due  diligence,  can  be  found 
within  the  state,  and  the  fact  appears  by  affidavit  to  the  satisfac- 
tion of  the  court,  or  a  judge  of  it;  and  it  also  appeai-s  by  such 
affidavit,  or  by  the  verified  complaint  on  file,  that  a  cause  of  ac- 
tion exists  against  the  defendant  in  respect  to  whom  the  service 
is  to  be  made,  or  that  he  is  a  necessary  or  proper  party  to  the 
action;  or  when  it  appears  by  such  affidavit,  or  by  the  complaint 
OM  file,  that  it  is  an  action  which  relates  to  or  the  subject  of  which 
is  real  or  personal  property  in  this  state,  in  which  such  person 
defendant  or  corporation  defendant  has  or  claims  a  lien  or  interest, 
actual  or  contingent,  in  it,  or  in  which  the  relief  demanded  consists 
wholly  or  in  part  in  excluding  such  person  or  corporation  from  any 
interest  in  it,  such  court  or  judge  may  make  an  order  that  the 
service  be  made  upon  a  person  by  publication  of  the  summons. 
Such  publication  must  be  in  some  newspaper  of  general  circula- 
tion, published  in  the  county  where  the  action  is  filed — and  must 
be  for  at  least  60  days.    (See  Judgment  by  Default;  Attachment.) 

When  the  defendant  receives  a  summons,  he  should  at  once  con- 
salt  an  attorney,  so  as  to  know  the  wisest  manner  in  which  to 
proceed.  Of  course,  he  is  privileged  to  make  his  own  appearance, 
ether  in  person,  or  by  filing  some  paper  (v/hich  will  be  considered 
later),  but  it  will  save  money  to  hire  a  lawyer  to  tell  him  what 
to  do. 

The  APPEARANCE  need  not  be  in  person,  but  may  be,  and 
usually  is,  by  an  attorney.  Before  the  required  time,  he  files  in 
the  same  court  a  paper  in  response  to  the  complaint.  This  paper 
may  be  either  a  demurrer,  or  an  answer,  or  both. 

A  DEMURRER  is  a  criticism  of  the  language  in  which  a  complaint 
is  written,  and  usually  raises  the  point  that  there  are  not  sufficient 
facts  stated  in  the  complaint.  This  demurrer  is  presented  and 
argued  by  the  attorneys  on  both  sides,  before  the  judge  which  sits 
in  the  court  where  the  complaint  is  filed,  and  who  then  decides 
whether  or  not  the  facts  are  properly  stated.  If  the  demurrer  is 
sustained  (that  is,  the  defendant's  attorney  is  right  in  his  criti- 
cism), the  complaint  must  then  be  rewritten  to  conform  to  these 
suggestions.     The  time  for  rewriting  and  filing  such  amended  com- 


12  ACTION 


plaint  is  usually  ten  days,  but  additional  time  may  be  granted  by 
the  judge. 

At  the  end  of  such  time,  the  amended  complaint  is  filed,  to  which 
another  demurrer  may  be  filed,  if  desired.  When  the  legal  points 
raised  by  these  various  demurrers  have  been  finally  settled  the  de- 
fendant must  file  his  answer  (which  must  be  under  oath  in  the 
Superior  Court,  provided  the  complaint  was  sworn  to)  and  in 
which  he  makes  such  denials  or  admissions  as  he  wishes,  or  he  may 
at  the  time  file  a  counter  claim  or  cross  complaint. 

CROSS  COMPLAINT:  Whenever  the  defendant  seeks  affirmative 
relief  against  any  party  to  the  action,  relating  to  or  depending  upon 
the  contract  or  transaction  upon  which  the  action  is  brought,  or 
affecting  the  property  to  which  the  action  relates,  he  may,  in  .addi- 
tion to  his  answer,  file  at  the  same  time  or,  by  permission  of  the 
court,  subsequently,  a  cross-complaint.  The  cro?-s-complaint  must 
be  served  upon  the  parties  affected  thereby,  and  such  parties  may 
demur  or  answer  thereto  as  to  the  original  complaint.  If  any  of 
the  parties  affected  by  the  cross-complaint  have  not  appeared  in 
the  action,  a  summons  upon  the  cross-complaint  must  be  issued  and 
served  upon  them  in  the  same  manner  as  upon  the  commencement 
of  an  original  action. 

There   can   be  no   cross-complaint  in  a  Justices'   Court. 

COUNTER  CLAIM:  Must  be  one  existing  in  favor  of  the  de- 
fendant and  against  the  plaintiff  between  whom  a  separate  judg- 
ment might  be  given  in  the  action,  and  arising  out  of  one  of  the 
following  causes  of  action:  (1)  Out  of  the  transaction  set  out  in 
the  plaintiff's  complaint,  or  connected  with  the  subject  matter  of 
the  action;  or,  (2)  In  an  action  based  upon  a  contract;  any  other 
cause  of  action  also  based  upon  contract,  and  existing  at  the  be- 
ginning of  the  action.  But  if  the  defendant  does  not  set  up  this 
counter-claim  based  upon  a  cause  arising  out  of  the  transaction  set 
out  in  the  complaint,  neither  he  nor  his  assignees  can  afterward 
maintain  an  action  against  the  plaintiff  for  it. 

When  the  defendant  has  filed  any  of  these  papers,  the  plaintiff, 
in  his  turn,  has  the  right  to  demur  to  them  (or,  if  a  cross-com- 
plaint is  filed,  it  is  necessary  that  the   plaintiff  answer  it). 

BILL  OF  PARTICULARS:  After  the  action  has  been  com- 
menced, the  defendant  can  demand  an  itemized  bill  (or  bill  of 
particulars)    sho^ving    the    items    of    the    account   sued    upon,    with 


AGENCY 


dates  and  times  of  sale  and  payment,  if  any,  and  if  such  bill  is 
not  furnished  within  five  days  from  the  date  of  demanding  it,  the 
plaintiff  cannot  introduce  any  proof  upon  the  items  at  the  time  of 
the  trial. 

TRIAL:  When  all  of  these  answers,  cross-complaints,  etc.,  have 
been  finally  filed,  the  case  is  ready  to  be  set  for  trial.  The  time 
when  the  trial  may  take  place  will  depend  entirely  upon  how  busy 
that  particular  court  may  be.  Each  side  is  entitled  to  five  days' 
notice  of  the  trial. 

At  the  time  of  setting  the  case  for  trial,  if  either  side  wishes  to 
have  the  case  tried  by  jury,  they  must  ask  for  it,  and  the  jury 
fee  of  thirty  dollars  a  day  must  be  paid  in  advance.  Otherwise 
neither  side  can  afterward  ask  for  a  jury  trial,  having  been  con- 
sidered to  have  waived  it. 

At  least  a  week  before  the  day  of  trial,  all  the  intended  wit- 
nesses should  be  subpoenaed  (see  Subpoenae),  and  should  be  in- 
terviewed by  the  attorney  who  is  to  try  the  case. 

At  the  trial,  the  plaintiff's  evidence  is  introduced  first,  with  his 
witnesses  sworn  and  examined.  The  defendant's  attorney  then 
has  the  right  to  cross  examine  each  of  plaintiff's  witnesses,  and 
plaintiff's  attorney  may  cross  examine  those  of  defendant. 

NON-SUIT:  If  the  plaintiff  does  not  present  enough  facts  to 
prove  his  case,  the  defendant  will  ask  for  a  non-suit.  If  this  is 
granted  by  the  judge,  it  acts  as  a  dismissal  of  the  case.  When  the 
case  is  being  tried  before  a  jury,  such  a  motion  is  called  a  Directed 
Verdict. 

There  can  be  no  non-suit  in  the  Justices'  Court. 

When  the  evidence  is  all  in,  the  judge  renders  his  decision,  which 
is  called  a  Judgment  (which  see) ;  if  the  trial  is  by  jury,  its  de- 
cision is  called  a  Verdict.      (See  Appeal.) 

Advancements:     See  Succession. 

Adverse   Possession:       See    Real   Estate. 

Affidavit:      See  Oath.     A  written  declaration  under  oath. 

Affirmation:      See   Oath. 

Agent:  See  Real  Estate  Agent;  Factor;  Principal  and  Agent; 
Master  and  Servant;  Employer  and  Employee;  Negotiable  Instru- 
ments, HSIOO,  3101,  3102,  3103,  3117,   3150,   3172. 

Agency:  See  Factor;  Master  and  Servant;  Employer  and  Em- 
ployee; Wages;  Real  Estate  Agents;  Auctioneer. 


14  AGENCY 


1.  An  ag:ent  is  one  who  represents  another,  called  the  prin- 
cipal, in  dealings  with  third  persons.  Such  representation  is  called 
agency. 

2.  Any  person  having  capacity  to  contract  may  appoint  an 
agent,  and  any  person  may  be  an  agent. 

An  agent  for  a  particular  act  or  transaction  is  called  a  special 
agent.     All  others  are  general  agents. 

3.  An  agency  is  either  actual  or  ostensible. 

It  is  actual  when  the  agent  is  really  employed  by  the  principal, 
and  is  ostensible  when  the  principal  intentionally,  or,  by  want  of 
ordinary  care,  causes  a  third  person  to  believe  another,  who  is 
not  really  employed  by  him,  to  be  his  agent. 

4.  An  agent  may  be  authorized  to  do  any  acts  which  his  prin- 
cipal might  do,  except  those  to  which  the  latter  is  bound  to  give  his 
personal  attention. 

Every  act  which  (according  to  the  laws  of  California)  may  be 
done  by  or  to  any  person,  may  be  done  by  or  to  the  agent  of  such 
person  for  that  purpose,  unless  a  contrary  intention  clearly  appears. 

An  agent  can  never  have  authority,  either  actual  or  ostensible, 
to  do  an  act  which  is,  and  is  known  or  suspected  by  the  person 
with  whom  he  deals,  to  be  a  fraud  upon  the  principal. 

An  agency  may  be  created,  and  an  authority  may  be  conferred, 
by   a   precedent  authorization   or  a   subsequent  ratification. 

A  consideration  is  not  necessary  to  make  an  authority,  v/hether 
precedent  or  subsequent,  binding  upon  the  principal. 

An  oral  authorization  is  sufRcient  for  any  purpose,  except  that 
an  authority  to  enter  into  a  contract  required  by  law  to  be  in  writ- 
ing can  only  be  given  by  an  instrument  in  writing.  (See  Statute 
of  Frauds;  Real  Estate  Agents.) 

An  agent  has  such  authority  as  the  principal,  actually  or  os- 
tensibly, confers  upon  him. 

Actual  authority  is  such  as  a  principal  intentionally  confers  upon 
the  agent,  or  intentionally,  or  by  want  of  ordinary  care,  allows 
the  agent  to  believe  himself  to  possess. 

Ostensible  authority  is  such  as  a  principal,  intentionally  or  by 
want  of  ordinary  care,  causes  or  allows  a  third  person  to  believe 
the  agent  to  possess. 

Every  agent  has  actually  such  authority  as  is  defined  by  this 
article  (unless  specially  deprived  thereof  by  his  principal),  and  has 


AGENCY  15 


even  then  such  authority  ostensibly,  except  as  to  persons  who  have 
actual  or  constructive  notice  of  the  restriction  upon  his  authority. 
An  agent  has  authority: 

(a)  To  do  everything  necessary  or  proper  and  usual,  in  the 
ordinary  course  of  business,  for  affecting  the  purpose  of  his  agency; 
and, 

(b)  To  make  a  representation  respecting  any  matter  of  fact, 
not  including  the  terms  of  his  authority,  but  upon  which  his  right 
to  use  his  authority  depends,  and  the  truth  of  which  cannot  be  de- 
termined by  the  use  of  reasonable  diligence  on  the  part  of  the 
person  to  whom  the  representation  is  made. 

An  agent  has  power  to  disobey  instructions  in  dealing  with  the 
subject  of  the  agency,  in  cases  where  it  is  clearly  for  the  interest 
of  his  principal  that  he  should  do  so,  and  there  is  not  time  to  com- 
municate with  the  principal. 

An  authority  expressed  in  general  terms,  however  broad,  does 
not  authorize  an  agent: 

(a)  To  act  in  his  own  name,  unless  it  is  usual  course  of  busi- 
ness to  do  so; 

(b)  To  define  the  scope  of  his  agency;  or, 

(c)  To  do  any  act  which  a  trustee  is  forbidden  to  do.  (See 
Trusts.) 

An  authority  to  sell  personal  property  includes  authority  to  war- 
rant the  title  of  the  principal,  and  the  quality  and  quantity  of  the 
property. 

An  authority  to  sell  and  convey  real  property  includes  authority 
to  give  the  usual  covenants  of  warranty.     (See  Real  Estate  Agents.) 

A  general  agent  to  sell,  who  is  intrusted  by  the  principal  with 
the  possession  of  the  thing  sold,  has  authority  to  receive  the  price. 

A  special  agent  to  sell  has  authority  to  receive  the  price  on  de- 
livery of  the  thing  sold,  but  not  afterward. 

An  agent  represents  his  principal  for  all  purposes  within  the 
scope  of  his  actual  or  ostensible  authority,  and  all  the  rights  and 
liabilities  which  would  belong  to  the  agent  from  transactions  within 
such  limit  (if  they  had  been  entered  into  on  his  own  account) 
belong  to  the  principal. 

A  principal  is  bound  by  an  incomplete  execution  of  an  authority, 
when  it  is  not  consistent  with  the  whole  purpose  and  scope  of  it, 
but  not  otherwise. 


16  AGENCY 


5.  A  ratification  can  be  made  only  in  the  manner  that  would 
have  been  necessary  to  confer  an  original  authority  for  the  rati- 
fier;  or,  where  an  oral  ratification  would  suffice,  by  accepting 
or  retaining  the  benefit  of  the  act  with  notice  of  it. 

Ratification  of  part  of  an  indivisible  transaction  is  a  ratification 
of  the  whole. 

It  is  not  valid  unless,  at  the  time  of  ratifying  the  act  done,  the 
principal  has  power  to  confer  authority  for  such  an  act. 

No  unauthorized  act  can  be  made  valid,  retroactively,  to  the 
prejudice  of  third  persons,  without  their  consent. 

A  ratification  may  be  rescinded  when  made  without  such  con- 
sent as  is  required  in  a  contract,  or  with  an  imperfect  knowledge 
of  the  material  facts  of  the  transaction  ratified,  but  not  other- 
wise.     (See  Rescission.) 

6.  As  against  a  principal,  both  principal  and  agent  are  deemed 
to  have  notice  of  whatever  either  has  notice  of,  and  ought,  in  good 
faith  and  the  exercise  of  ordinary  care  and  diligence,  to  com- 
municate to  the  other. 

When  an  agent  exceeds  his  authority,  his  principal  is  bound  by 
his  authorized  act  so  far  only  as  they  can  be  plainly  separated 
from  those  which  are  authorized. 

A  principal  is  bound  by  acts  of  his  agent,  under  a  merely  os- 
tensible authority,  to  those  persons  only  who  have,  in  good  faith, 
and  without  want  of  ordinary  care,  incurred  a  liability  or  parted 
with   value,  upon  the  faith  of  the  authority. 

An  instrument  within  the  scope  of  his  authority  by  which  an 
agent  intends  to  bind  his  principal,  does  bind  him  if  such  intent 
is  plainly  inferable  from  the  instrument  itself. 

If  an  agent  receives  anything  for  the  benefit  of  his  principal, 
to  the  possession  of  which  another  person  is  entitled,  he  must,  on 
demand,  surrender  it  to  such  person,  or  so  miijch  of  it  as  he  has 
under  his  control  at  the  time  of  demand,  on  being  indemnified  for 
any  advance  which  he  has  made  to  his  principal,  in  good  faith,  on 
account  of  the  same,  and  is  responsible  for  it  if,  after  notice  from 
the  owner,  he  delivers  it  to  his  principal. 

7.  One  who  assumes  to  act  as  an  agent  is  responsible  to  third 
persons  as  a  principal  for  his  acts  in  the  cause  of  his  agency,  in 
any  of  the  following  cases,  and  in  no  others: 


AGENCY  1'^ 


(a)  When  with  his  consent,  credit  is  given  to  him  personally 
in  a  transaction; 

(b)  When  he  enters  into  a  written  contract  in  the  nan^^  of  his 
principal,  without  believing,  in  good  faith,  that  he  had  authority  to 
do  so;  or, 

(c)  When  his  acts  are  wrongful   in   their  nature. 

One  who  assumes  to  act  as  an  agent  thereby  warrants  to  all  who 
deal  with  him  in  that  capacity  that  he  has  the  authority  v/hich  he 
assumes. 

One  who  deals  v/ith  an  agent  without  knowing  or  having  reason 
to  believe  that  the  agent  acts  as  such  in  the  transaction,  may  set 
off  against  any  claim  of  the  principal  arising  out  of  the  same,  all 
claims  v/hich  he  might  have  set  off  against  the  agent  before  notice 
of  the  agency. 

8.  Unless  required  by  or  under  the  authority  of  law  to  employ 
the  particular  agent,  a  principal  is  responsible  to  third  persons  for 
the  negligence  of  his  agent  in  the  transaction  of  the  business  of 
the  agency,  including  wrongful  acts  committed  by  such  agent  in 
and  as  a  part  of  the  transaction  of  such  business,  and  for  his  v/ilful 
omission  to  fulfill  the  obligations  of  the  principal. 

A  principal  is  responsible  for  no  other  wrongs  committed  by 
his  agent  than  those  mentioned  in  the  last  section,  unless  he  has 
authorized  or  ratified  them,  even  though  they  are  committed  while 
the  agent  is  engaged  in  his  service. 

If  exclusive  credit  is  given  to  an  agent  by  the  person  dealing 
v;ith  him,  his  principal  is  exonerated  by  payment  or  other  satis- 
faction made  by  him  to  his  agent  in  good  faith,  before  receiving 
notice  of  the  creditor's  election  to  hold  him  responsible. 

9.  An  agency  is  terminated,  as  to  every  person  having  notice 
of  it,  by  (a)  The  expiration  of  its  term;  (b)  The  extinction  of  its 
subject;  (c)  The  death  of  the  agent;  (d)  His  renunciation  of  the 
agency;  or,  (e)  The  incapacity  of  the  agency  (agent)  to  act  as 
such. 

Unless  the  power  of  an  agent  is  coupled  with  an  interest  in  the 
subject  of  the  agency,  it  is  terminated,  as  to  every  person  having 
notice  thereof,  by  (a)  Its  revocation  by  the  principal;  (b)  His 
death;  or,   (c)   His  incapacity  to  contract. 

10.  Unless  specially  forbidden  by  his  principal  to  do  so,  an 
agent   can   delegate   his   powers  to    another   person    in    any   of   the 


18  ANIMALS 


following  cases  and  in  no  others:  (a)  When  the  acl^to  be  done  is 
purely  mechanical;  (b)  When  it  is  such  as  the  agent  cannot  himself 
lawfully  perform,  and  the  sub-agent  can;  (c)  When  it  is  the  usage 
of  the  place  to  delegate  such  powers;  or,  (d)  When  such  delegation 
is  specially  authorized  by  the  principal. 

If  an  agent  employs  a  sub-agent  without  authority,  the  former 
is  a  principal  and  the  latter  his  agent,  and  the  principal  of  the 
former  has  no  connection  with  the  latter. 

A  sub-agent,  lawfully  appointed,  represents  the  principal  in  like 
manner  with  the  original  agent,  and  the  original  agent  is  not 
responsible   to  third  persons  for  the  acts  of   the   sub-agent. 

Agreement   for   Sale:      See   Real  Estate. 

Air,  Law  of:     See  Aviation. 

Aliens:      See  Real  Estate;  Citizens. 

Alteration  of  Instruments:  See  Negotiable  Instruments,  jf3204, 
3206;    Contracts;    Bill    of    Lading,    2128;    Warehouse    Receipts,    13. 

Any  change  in  the  terms  of  a  written  contract  which  varies  its 
legal  effect  and  operation  (either  as  to  the  obligation  or  as  evi- 
dence), when  made  by  any  party  to  the  contract,  is  an  alteration 
of  it,  unless  all  the  other  parties  to  the  contract  gave  their  ex- 
press or  implied  consent  to  the  change.  And  the  effect  of  such 
alteration  is  to  change  the  altered  instrument  as  a  legal  obligation 
even  in  the  hands  of  a  bona  fide  holder,  and  whether  made  with 
fraudulent  intent  or  not.  The  alteration  may  consist  in  changing 
(1)  its  date,  or  (2)  the  time,  or  (3)  place  of  payment,  or  (4)  the 
amount  of  the  principal,  or  (5)  the  interest  to  be  paid;  or  (6)  by 
adding  some  new  provision;  or  (7)  by  substituting  one  provision 
for  another;  or  (8)  by  obliterating,  or  (9)  subtracting  some  pro- 
vision in  it. 

Alluvion:     See  Real  Estate. 

Ancient  Lights:      See  Real  Estate. 

Animals:  See  Deposit;  Storage;  Liens;  Estrays;  Findings;  Dogs; 
Live  Stock;  Monopolies;  Fence. 

The  California  laws  are  quite  unlimited  in  their  endeavor  to  pro- 
tect all  kinds  of  animals  (except,  of  course,  the  "game  laws,"  which 
are  changed  every  Legislature,  and  which  are  too  extensive  and 
complicated  for  a  work  of  this  kind.) 

The  following  offenses  against  animals  are  crimes:  Administer- 
ing any  poison,  drug,  medicine,  or  other  noxious  substance — except 


ANIMALS  19 


for  medicinal  purposes;  to  place  any  sponge,  wood  or  foreign  sub- 
stance, upon  any  animal  with  intent  to  affect  his  speed,  or  endur- 
ance, or  physical  condition;  to  fail  to  keep  any  animal  securely  en- 
closed, and  free  from  contact  with  other  animals,  when  such  animal 
is  affected  with  any  contagious  or  infectious  disease;  to  fail  to 
cremate  or  bury  the  body  of  any  animal  which  has  died  of  any  in- 
fectious disease,  or  to  permit  such  body  to  be  used  for  food  for 
human  beings,  or  food  for  domestic  animals  or  fowl;  to  overdrive, 
ovei'load,  overwork,  torture,  torment,  deprive  of  necessary  susten- 
ance, drink  or  shelter,  to  cruelly  beat,  mutilate  or  kill  any  animal, 
or  to  subject  it  to  needless  suffering,  or  in  any  manner  abuse  it  or 
fail  to  provide  it  proper  food,  drink  or  shelter,  or  protection  from 
the  weather,  or  to  drive,  ride  or  otherv/ise  use  the  animal  when 
unfit  for  labor;  to  cause  animals  to  fight,  worry  or  injure  each  other 
for  amusement  or  gain  of  human  beings;  to  dock  any  horse;  to 
omit  to  kill  any  animal  which  is  unfit  by  reason  of  its  physical 
condition  for  the  purpose  for  v/hich  such  animals  are  usually  em- 
ployed; to  use  a  bristle  burr,  burr  tack,  or  other  similar  device. 

One  who  keeps  a  dog  which  he  knows  to  be  vicious,  is  responsible 
for  any  injuries  which  it  commits — such  as  killing  another  dog. 

And  one  who  keeps  a  wild  animal  (such  as  a  circus  owner)  is 
responsible  for  damages  caused  by  such  animal.  The  owner  must 
exercise  the  highest  degree  of  care,  and  is  an  insurer  against  the 
acts  of  the  animal. 

It  is  unlawful  for  any  person,  firm  or  corporation  owning,  or 
having  possession  of,  any  animal,  to  suffer  or  permit  such  animal  to 
break  into  and  enter  upon  any  land  owned  by,  or  lawfully  in  the 
possession  of  anj'^  person,  firm  or  corporation,  other  than  the  owner 
of  such  animal,  in  all  cases  where  such  land  is  planted  to  growing 
crops,  vines,  fruit  trees  or  vegetables,  and  is  at  the  time  entirely 
enclosed  by  a  substantial  fence  or  other  inclosure. 

The  ovmer  of,  or  person  who  is  in  the  lawful  possession  of,  any 
land  trespassed  upon,  in  violation  of  this  act,  is  entitled  to  recover, 
by  action  in  a  court  of  competent  jurisdiction,  from  the  owner  of, 
or  person  in  possession  of,  or  person  .chargeable  with  the  care  of, 
the  trespassing  animal  or  animals,  all  actual  damages  sustained  by 
reason  of  such  trespass,  together  with  costs  of  suit. 

For  the  purpose  of  allowing  the  plaintiff  a  better  security  for  the 
payment  of  any  judgment  he  may  recover  in  actions  brought  under 


20  APARTMENT 


the  first  two  sections,  all  the  provisions  of  the  Code  of  Civil  Pro- 
cedure of  this  state  relating  to  attachment  process  shall  apply  to 
such  actions,  subject  only  to  the  following  modifications,  to-wit: 
Instead  of  filing  the  affidavit  on  attachment,  the  plaintiff  is  entitled 
to  the  issuance  of  a  v/rit  of  attachment  against  the  property  of 
defendant,  upon  filing  his  complaint  stating  a  cause  of  action  under 
this  act,  verified  according  to  the  law  concerning  the  verification 
of  pleadings. 

No  animal  is  exempt  from  attachment  or  execution,  levy  and 
sale,  to  satisfy  a  judgment  that  may  be  rendered  against  the  owner 
of  such  animal  for  trespass  committed  by  such   animal. 

TRESPASS:  If  the  owner  of  animals  in  the  counties  subject  to 
the  Fence  laws  does  not  confine  them  upon  his  own  lands,  he  is 
guilty  of  no  wrong,  unless  it  should  appear  that  through  malice  to 
injure  his  neighbor — or  the  overstocking  of  his  pasture  lands  for 
the  purpose  of  feeding  his  herds  upon  the  pasture  of  his  neighbor 
— he  should  unconsciously  drive  or  herd  them  upon  his  neighbor's 
lands.     In  such  case,  the  courts  would  restrain  him  from  so  doing. 

TRESPASS  OF:  The  rule  of  the  common  law  (see  Common 
Law)  which  required  every  man  to  keep  his  beasts  within  his  own 
close,  was  in  force  in  this  State  until  1850,  when  it  was  set  aside 
by  the  legislature  of  that  year.  In  1863,  and  following  years, 
special  acts  were  passed  applying  to  various  counties,  so  that  now 
in  many  counties  the  law  is  that  an  owner  of  land  is  not  required 
to  fence  it  against  cattle  belonging  to  another  person,  but  could 
maintain  an  action  for  damages  against  the  owner  of  such  cattle, 
permitting  them  to  trespass  upon  such  unenclosed  land.  This  is 
the  rule  in  the  following  counties:  Santa  Clara,  Fresno,  Tulare, 
Kern,  Ventura,  Santa  Barbara,  San  Luis  Obispo,  Monterey,  Los 
Angeles.  It  has  not  been  changed  by  the  1907  act,  which  made  it 
unlawful  for  any  person  owning  or  in  possession  of  an  animal  to 
suff'er  or  permit  such  animal  to  break  into  or  enter  upon  any  lands 
of  another  person  where  such  land  is  planted  to  growing  crops, 
vines,  fruit  trees  or  vegetables,  where  such  land  is  at  the  time  en- 
closed by  a  substantial  enclosure. 

But,  under  a  former  statute,  it  made  no  difference  whether  there 
was  a  fence  or  not,  and  it  has  been  so  decided. 

Anti-Trust  Law:     See  Monopolies. 

Apartment  House:     See  Hotels;  Liens. 


ARREST  21 


Apprentice:      See   Children. 

Apprentice  Laws:      See  Children. 

Appropriation:     See  Water  Law. 

Appurtenances:      See   Real   Estate. 

Answer:     See  Action. 

Appeal:     See  Attachment;  Action. 

If  either  side  is  dissatisfied  with  the  Judgment  of  the  Court,  or 
the  Verdict  of  the  Jury,  he  may  appeal.  (The  proceedings  for 
perfecting  an  appeal  from  the  Superior  Court  are  too  complicated 
for  a  work  of  this  kind,  and  impracticable  for  any  one  not  an  at- 
torney to  attempt.)  If  the  action  was  tried  in  the  Justices'  Court, 
a  notice  of  appeal  is  filed,  and  a  bond  for  costs  deposited  Avith  the 
Clerk  of  the  Court.  (If  it  is  wished  to  have  a  stay  of  execution, 
an  additional  bond  in  twice  the  amount  of  the  judgment  must  also 
be  filed.)  These  bonds  can  be  cash,  or  be  signed  by  a  surety  com- 
pany, or  two  householders,  or  two  freeholders,  each  of  whom 
swears  that  he  is  worth  the  amount  of  the  bond. 

The  appealing  party  must  also  pay  the  fees  of  the  Superior 
Court,  namely  $8,  and  cost  of  Justices'  transcript,   $1.50. 

If  the  judgment  was  by  default,  there  is  no  appeal  in  the  Jus- 
tices' Court.  The  only  remedy  is  to  make  a  motion  to  set  it  aside. 
This  motion  must  be  presented  before  the  Justice  and  heard  within 
ten  days  from  the  time  the  party  has  notice  or  knowledge  of  the 
judgment. 

When  the  case  is  again  tried  in  the  Superior  Court,  there  is  no 
appeal  from  this  decision.      (See  Courts.) 

Architects:  No  person  in  this  state  is  permitted  to  advertise,  or 
to  put  out  any  sign,  card  or  other  device  which  might  indicate  to 
the  public  that  he  is  an  architect,  unless  he  has  received  a  cer- 
tificate to  practice  architecture  in  this  state,  from  the  State  Board 
of  Architecture;  but  this  shall  not  prevent  any  person  from  making 
plans  for  his  own  building,  nor  furnishing  plans  or  other  data  for 
buildings  for  other  persons — provided  he  does  not  claim  to  be  a 
certified  architect.      (See  Liens.) 

Arrests:  A  private  person  may  arrest  another  for  a  public 
offense  committed  or  attempted  in  his  presence;  or,  when  the  per- 
son arrested  has  committed  a  felony,  though  not  in  his  presence; 
or,  when  a  felony  has  in  fact  been  committed,  and  he  has  reason- 
able cause  to  believe  that  the  person  arrested  committed  it. 


22  ARREST 


If  the  offense  be  a  felony,  he  may  break  open  the  door  or  win- 
dow of  the  house  in  which  the  person  to  be  arrested  is,  or  in  which 
there  is  reasonable  grounds  for  believing  him  to  be — after  having 
demanded  admittance  and  explaining  the  purpose  for  which  ad- 
mittance  is  desired. 

Any  person  making  an  arrest  may  summon  orally  as  many  per- 
sons as  he  deems  necessary  to  aid   him  in  so   doing. 

A  private  person  making  an  arrest  must  take  the  arrested  per- 
son before  a  magistrate  without  unnecessary  delay,  or  deliver  him 
to  a  peace  officer. 

He  may  take  from  the  arrested  person  all  offensive  weapons 
which  are  about  his  person,  and  must  deliver  these  to  the  magistrate 
before  whom  he  is  taken. 

When  a  peace  officer  makes  an  arrest,  either  with  or  without  a 
warrant,  it  may  be  for  any  of  the  circumstances  under  which  a 
private  person  may  make  an  arrest,  and  also  on  a  charge  made 
upon  a  reasonable  cause  of  the  commission  of  a  felony  by  the 
party  arrested;  or  at  night,  when  there  is  reasonable  cause  to 
believe  that  he  has  committed  a  felony. 

If  the  offense  charged  is  a  felony,  the  arrest  may  be  made  at 
any  time,  day  or  night.  If  it  is  a  misdemeanor,  the  arrest  cannot 
be  made  at  night,  unless  upon  direction  of  the  magistrate,  en- 
dorsed upon  the  warrant — or  unless  the  offense  is  committed  in 
the  presence  of  the  arresting  person. 

The  person  making  the  arrest  must  inform  the  arrested  person  of 
the  intention  to  arrest  him,  of  the  cause  of  the  arrest,  and  the 
authority  in  committing  or  attempting  to  commit,  an  offense,  after 
information  of  the  intention  to  make  the  arrest. 

When  the  arrest  is  being  made  by  an  officer  under  authority  of 
a  warrant,  he  may  use  all  necessary  force  to  effect  the  arrest,  if 
the  person  arrested  either  flees  or  forcibly  resists — or  is  pursued 
immediately  after  its  commission,   or  after  an   escape. 

A  peace  officer  may  break  doors  and  windows  in  the  same  man- 
ner and  under  the  same  circumstances  as  a  private  person. 

If  he  is  acting  under  authority  of  a  warrant,  he  must  show  it, 
if  required. 

Every  person  who  wilfully  obstructs,  resists,  delays  any  public 
officer  in   the   discharge   or  attempt  to   discharge   any   duty   of   his 


ARREST  23 


office,  is  punishable  by  fine  not  exceeding  $5000,  and  innprison- 
ment  in  the  county  jail  not  exceeding  five  years. 

Every  male  person,  over  the  age  of  18  years,  must  assist  in 
taking  or  arresting  any  person  against  whom  there  may  be  issued 
any  process,  or  in  aiding  and  assisting  in  retaking  any  person  who 
may  have  escaped  from  confinement  or  arrest;  and  if  he  does  not 
do  so,  he  is  subject  to  fine  and  imprisonment,  or  both. 

Every  person  who  attempts  to  rescue,  or  aids  another  in  rescu- 
'ing,  any  prisoner  from  any  prison  or  from  any  officer  or  person 
having  him  in  lawful  custody;  or  who  takes  or  attempts  to  take,  or 
assist  in  the  taking  of  any  personal  property  from  the  custody  of 
any  officer  or  person  having  charge  of  the  same  under  any  process 
of  law;  or  who  wilfully  assists  any  paroled  prisoner,  or  prisoner 
confined  in  any  prison  or  jail — is  punishable. 

Force  may  be  used  by  the  owner  to  retake  property  from  the 
person  who  has  obtained  possession  of  it  by  force  or  fraud,  and  is 
overtaken  while  carrying  it  away.  But  only  as  much  force  as  is 
necessary  to  retain   it.      If  more  is  used,   it  may   become   battery. 

Any  necessary  force  may  be  used  to  protect  from  wrongful  in- 
jury the  person  or  property  of  one's  self,  or  of  a  wife,  husband, 
child,  parent  or  other  relative,  or  member  of  one's  family,  or  of  a 
ward,  servant,  master  or  guest. 

Electors  shall,  in  all  cases,  except  treason,  felony,  or  breach  of 
the  peace,  be  privileged  from  arrest  on  the  day  of  election,  during 
their  attendance  at  such  election,  going  to  and  returning  therefrom. 

Arrest  in  Civil  Actions:  See  Bankruptcy.  The  California  Con- 
stitution provides  that  there  shall  be  no  imprisonment  for  debt,  ex- 
cept in  cases  where  debts  were  fraudulently  contracted  or  where 
there  is  an  attempt  at  fraudulent  disposition  of  property  with  in- 
tent to  delay  creditor  or  deprive  him  of  payment.  In  such  cases 
the  body  of  the  debtor  is  allowed  to  be   seized  and   confined. 

No  person  can  be  arrested  in  civil  action  except  in  an  action  for 
the  recovery  of  money  or  damages  arising  upon  contract,  or  after 
judgment,  when  the  defendant  is  about  to  depart  from  the  state 
with  intent  to  defraud  his  creditors;  in  an  action  for  fine  or  pen- 
alty, or  for  money  or  property,  fraudulently  misapplied,  or  con- 
verted to  his  own  use,  by  a  public  officer,  or  an  officer,  broker, 
agent,  or  clerk,  in  the  course  of  his  employment  as  such,  or  by  any 
other  person  in  a  fiduciary  capacity;  or  for  misconduct  or  neglect 


24  ARSON 


in  office,  or  in  a  professional  employment,  or  for  a  wilful  viola- 
tion of  duty;  in  an  action  to  recover  possession  of  personal  prop- 
erty unjustly  detained,  when  the  property  or  any  part  of  it  has 
been  concealed,  removed  or  disposed  of,  to  prevent  its  being  found 
or  taken  by  the  sheriff  or  other  officer;  when  the  defendant  has 
been  guilty  of  fraud  in  contracting  the  debt  or  incurring  the  ob- 
ligation for  which  the  action  is  brought;  or  in  concealing  or  dis- 
posing of  the  property  for  taking,  detention,  or  conversion  of 
which  the  action  is  brought;  when  the  defendant  has  removed  or 
disposed  of  his  property,  or  is  about  to  do  so,  with  intent  to  de- 
fraud his  creditors. 

An  order  for  the  arrest  of  the  defendant  must  be  obtained  from 
a  judge  of  the  court  in  which  the  action  was  brought. 

The  order  may  be  made  whenever  it  appears  to  the  judge,  by 
the  affidavit  of  the  plaintiff,  or  some  other  person,  that  a  sufficient 
cause  of  action  exists. 

Before  making  the  order  of  arrest,  the  judge  must  require  a 
bond  from  the  plaintiff,  with  sureties  in  an  amount  to  be  fixed  by 
the  judge,  which  must  be  at  least  five  hundred  dollars,  to  the  effect 
that  the  plaintiff  will  pay  all  costs  which  may  be  adjudged  to  the 
defendant,  and  all  damages  which  he  may  sustain  by  reason  of  the 
arrest,  if  the  same  be  wrongful  or  without  sufficient  cause,  not 
exceeding  the  sum  specified  in  the  bond. 

Debtor  may  be  discharged  by  giving  bail,  or  at  the  request  of 
creditors  or  upon  application  to  Judge  of  the  Superior  Court,  and 
proper  oath.  After  discharge  in  the  manner  as  in  the  last  two 
cases,  he  cannot  be  arrested  again  for  the  same  debt.  If  not  dis- 
charged, the  creditor  must  pay  the  debtor's  board  in  the  jail,  each 
week  in  advance,  or  debtor  will  be  discharged. 

No  woman  may  be  arrested  in  civil  action,  under  any  circum- 
stances.     (See  Execution.) 

Arson:     See  Insurance. 

Arson  is  wilful  and  malicious  burning  of  a  building,  with  intent 
to  destroy  it. 

Any  house,  edifice,  structure,  vessel,  or  other  erection,  capable  of 
affording  shelter  for  human  beings,  or  appurtenant  to  or  connected 
v/ith  an  erection  so  adapted,  is  a  "building"  within  the  meaning  of 
this  article. 


ARTESIAN  25 


Any  building  which  has  usuallj'  been  occupied  by  any  person 
lodging  therein  at  night  is  an  "inhabited  building"  within  the  mean- 
ing of  this  article. 

The  phrase  "night  time,"  as  used  here,  means  the  period  between 
sunset  and  sunrise. 

To  constitute  a  burning,  within  the  meaning  of  this  article,  it 
is  not  necessary  that  the  building  set  on  fire  shall  have  been  des- 
troyed. It  is  sufficient  that  fire  is  applied  so  as  to  take  effect  upon 
any  part  of  the  substance  of  the  building. 

To  constitute  arson  it  is  not  necessary  that  a  person  other  than 
the  accused  should  have  had  ownership  in  the  building  set  on  fire. 
It  is  sufficient  that  at  the  time  of  the  burning  another  person  was 
rightfully  in  possession  of,  or  was  actually  occupying,  such  build- 
ing, or  any  part  of  it. 

Arson  is  divided  into  two  degrees. 

Maliciously  burning  in  the  night  time,  an  inhabited  building  in 
which  there  is  at  the  time  some  human  being,  is  arson  in  the  first 
degree.     All  other  kinds  of  arson  are  of  the  second   degree. 

Arson  is  punishable  by  imprisonment  in  the  state  prison,  as 
follows : 

1.  Arson  in  the  first  degree,  for  not  less  than  two  years. 

2.  Arson  in  the  second  degree,  for  not  less  than  one  nor  more 
than  twenty-five  years. 

Every  person  who  wilfully  burns  or  in  any  other  manner  injures 
or  destroys  any  property  which  is  at  the  time  insured  against  loss 
or  damage  by  fire,  or  by  any  other  casualty,  with  intent  to  defraud 
or  prejudice  the  insurer,  whether  the  same  be  the  property  of  or 
in  possession  of  such  person,  or  of  any  other,  is  punishable  by  im- 
prisonment in  the  state  prison  not  less  than  one  nor  more  than  ten 
years. 

Artesian  Wells:  Is  any  artificial  well,  the  waters  of  which  will 
flow  continuously  over  the  natural  surface  of  the  ground  adjacent 
to  it,  at  any  season  of  the  year.      (See  also  Water  Law.) 

Any  artesian  well  which  is  not  capped,  equipped  or  furnished 
with  such  mechanical  appliance  as  will  readily  and  effectively  ar- 
rest and  prevent  the  flow  of  any  water  from  such  well,  is  hereby 
declared  to  be  a  public  nuisance.  The  owner,  tenant,  or  occupant 
of  the  land  upon  which  such  well  is  situated,  who  causes,  permits, 
or  suffers  such  public  nuisance,  or  suffers  or  permits  it  to  remain 


26  ASSAULT 


or  continue,  is  guilty  of  a  misdemeanor;  and  any  person  owning, 
possessing  or  occupying  any  land  upon  which  is  situated  an  ar- 
tesian well,  who  causes,  suffers,  or  permits  the  water  to  unneces- 
sarily flow  from  such  well,  or  to  go  to  waste,  is  guilty  of  a  mis- 
demeanor. 

For  the  purposes  of  this  act,  an  artesian  well  is  defined  to  be 
any  artificial  hole  made  in  the  ground  through  which  water  natur- 
ally flows  from  subterranean  sources  to  the  surface  of  the  ground 
for  any  length  of  time. 

Waste  is  defined,  for  the  purposes  of  this  act,  to  be  the  causing, 
suffering,  or  permitting  any  water  flowing  from  an  artesian  well, 
to  run  into  any  river,  creek,  or  other  natural  water-course  or  chan- 
nel, or  into  any  bay  or  pond  (unless  used  thereafter  for  the  bene- 
ficial purposes  of  irrigation  of  land  or  domestic  use),  or  into  any 
street,  road  or  highway,  or  upon  the  land  of.  any  person,  or  upon 
the  public  lands  of  the  United  States  or  of  the  State  of  California, 
unless  it  be  used  thereon  for  the  beneficial  purposes  of  the  irriga- 
tion thereof,  or  for  domestic  use,  or  the  propagation  of  fish.  The 
use  of  any  water  flowing  from  an  artesian  well  for  the  irrigation 
of  land,  whenever  over  ten  per  cent  of  the  water  received  on  such 
land  for  irrigation  is  allowed  to  escape  therefrom,  is  also  hereby 
declared  to  be  waste  within  the  meaning  of  this  act.  Each  day's 
continuance  of  such  waste  shall  constitute  a  new  offense. 

Assault  and  Battery:  This  is  really  not  one  act,  but  two,  the 
assault  being  the  attempt  to  commit  a  battery,  and  battery  being 
an  unpermitted  application  of  force  by  one  person  to  another's 
person.  The  amount  of  the  force  applied  is  not  the  question,  but 
was  it  without  permission.  The  term  "person"  includes  not 
only  his  body  and  clothing,  but  also  v/hat  he  may  be  sitting  or  rid- 
ing upon,  or  what  he  may  be  carrying.  In  such  cases,  damages  are 
presumed.  The  greater  the  assault,  the  greater  the  damage,  un- 
doubtedly. But  one  should  resist  only  so  far  as  necessary  to  pro- 
tect himself  from  injury.  If  the  resistance  is  too  great,  it  becomes 
battery  on  his  part.  Hypnotism,  drugged  candy,  a  loaded  cigar,  a 
concealed  fire-cracker,  or  some  concealment  by  whicli  a  person  in- 
jures himself — each  is  a  battery — but  scuffling  in  play,  boxing  or 
hazing  would  not  be. 

The   right    to    use    force,   particularly    as   against    the    person    of 


ATTACHMENT  27 


another,  must  be  no  more  than  is  reasonably  adequate  and  neces- 
sary to  the  occasion.      (See  Arrest.) 

Assessment:      See   Corporations. 

Assis^nment  of  Contracts  of  Sale  of  Real  Estate:  See  Real  Es- 
tate;  Fraud. 

Assignment:  See  Landlord  and  Tenant;  Transfers;  Bankruptcy; 
Bulk  Law.  A  thing  in  action,  arising'  out  of  the  violation  of  a 
right  of  property,  or  out  of  an  obligation,  may  be  transferred  by 
the  ovv'ner;  except  wrongs  done  to  the  person,  the  reputation,  or 
the  feelings  of  the  injured  party,  and  except  contracts  of  a  purely 
personal  nature — such  as  promises  of  marriage. 

Every  conveyance  or  assignment,  in  v/riting  or  otherwise,  of  any 
estate  or  interest  in  lands,  or  in  goods,  choses  in  action,  or  of  any 
rent  or  profits  issuing  from  them,  and  every  charge  upon  land, 
goods,  or  things  in  action,  or  upon  the  rents  or  profits  of  it,  made 
with  the  intent  to  hinder,  delay,  or  defraud  creditors  or  other 
persons  of  their  lawful  suits,  damages,  forfeitures,  debts,  or  de- 
mands— and  every  bond  or  other  evidence  of  debt  given,  suits 
com-menced,  decree  of  judgment  suffered,  with  like  intent,  shall  be 
void  against  the  persons  hindered,  delayed  or  defrauded. 

Assignee:  See  Assignments;  Negotiable  Instruments.  The  one 
to  whom  an  assignment  is  made. 

Assignor:  See  Assignment;  Negotiable  Instruments.  The  one 
who  makes  the  assignment. 

Assumed  Name:  See  Name;  Fictitious  Name;  Trade  Name 
(under  Trsde  Marks). 

Assumed  Risk:  Though  this  defense  is  no  longer  good  in  this 
state,  since  the  Workmen's  Compensation  Law  was  in  force,  yet 
there  are  many  who  desire  to  know  its  meaning. 

An  employee  is  not  required  to  use  any  degree  of  care  or  dili- 
gence to  discover  defects;  he  will  be  held  to  have  assumed  the  risk 
only  where  he  knew,  and  will  be  held  to  have  known  only  when 
the  defect  was  so  obvious  that  he  must  have  known  or  simply  re- 
fused to  open  his  eyes  and  see;  or  when  he  was  put  upon  inquiry 
by  some  discovery  or  suggestion  of  danger  which  was  gross  negli- 
gence for  him  to  neglect. 

Attorney  at  Law:     See  Lawyers;  Costs;  Bill  of  Lading. 

Attachment:  See  Action;  Animals;  Limitations;  Exemption; 
Liens;  Wages;  Mortgages;  Chattel  Mortgages;  Appeal;  Bill  of  Lad- 
ing, 2128h,  2129e;  Warehouse  Receipts,  25,  42. 


ATTACHMENT 


In  an  action  brought  upon  an  express  or  implied  contract  and 
at  any  time  before  trial,  the  plaintiff  may  cause  any  real  or  per- 
sonal property  belonging  to  the  defendant  (or  in  which  he  claims 
an  interest  not  exempt),  to  be  attached,  or  taken  into  possession 
of  the  Sheriff  or  Constable. 

If  judgment  prayed  for  in  the  Justices'  Court  is  less  than  ten 
dollars,  no  attachment  may  be  issued. 

Attachments  may  be  issued  for  suits  brought  on  bail  bonds;  for 
official  bonds;  for  appeal  bond;  for  commissions  due;  for  assess- 
ments due  a  corporation;  for  labor  on  a  boat;  for  any  contract, 
if  the  amount  is  certain;  on  mortgage  foreclosure,  in  the  possibility 
that  the  property  will  not  bring  the  amount  of  the  mortgage,  and 
that  there  may  be  a  Deficiency  Judgment    (which  see). 

But  attachments  cannot  be  levied  for  installments  due;  nor  for 
Torts;  nor  for  money  won  in  gambling;  for  collision  of  vessels;  for 
debts  not  due;  nor  when  the  creditor  has  collateral  security,  or 
other  security,  which  he  has  not  used  to  satisfy  the  debt. 

GARNISHMENT:  When  a  writ  of  attachment  is  served  upon  a 
person  having  in  his  possession  or  under  his  control,  any  credits 
or  other  personal  property  belonging  to  the  defendant,  or  owing 
any  debts  to  the  debtor  at  the  time  of  service  upon  such  person  of 
a  copy  of  such  writ — such  service  is  called  garnishment,  and  the 
person  is  said  to  be  "garnisheed."  He  must  hold  all  such  property, 
give  a  statement  of  it  to  the  officer  v/ho  serves  the  writ,  and  keep 
it  safely  until  the  outcome  of  the  suit. 

GARNISHMENT  OF  MONEY  IN  THE  HANDS  OF  LAW: 
Money  in  the  hands  of  a  constable,  sheriff,  clerk  of  the  court  or 
receiver,  cannot  be  garnisheed,  attached,   or  levied   upon. 

GARNISHMENT  OF  MUNICIPAL  OFFICERS'  SALARIES: 
Salaries  of  State  or  County  or  City  employees  cannot  be  garnisheed 
before  judgment  rendered,  and  then  only  under  special  proceeding. 

GARNISHMENT  OF  WAGES:  The  wages,  or  earnings,  of  a 
debtor  may  be  garnisheed  at  any  time  after  filing  a  suit,  but  will 
be  released  when  the  officer  discovers  that  such  wages  are  neces- 
sary for  the  support  of  the  debtor's  family,  or  those  dependant  upon 
him,  in  whole  or  in  part,  and  have  been  earned  within  30  days 
next  preceding  the  levy  of  the  writ;  if  the  bill  was  for  necessaries, 
only  one-half  of  such  wages  will  be  released. 


ATTACHMENT  29 


THIRD  PARTY  CLAIM:  If  the  property  levied  U'lon  is  claimed 
by  a  third  person  as  his  property  by  a  written  claim,  veinfied  by 
his  oath,  or  that  of  his  agent,  setting  out  his  right  to  the  po33es'3ion 
of  it,  and  served  upon  the  sheriff — the  sheriff  is  not  bound  to  keep 
the  property  unless  the  creditor,  on  demand,  indemnifies  the  sheriff 
against  such  claim  by  an  undertaking  of  at  least  two  sureties  in  a 
sum  equal  to  double  the  value  of  the  property;  and  the  sheriff  is 
not  liable  for  damages  for  the  taking  or  keeping  of  such  property 
unless  such  claim  be  filed. 

FEDERAL  EMPLOYEES'  SALARIES:  As  Justices  of  the  Peace 
and  the  Judges  of  the  Superior  Courts  have  no  jurisdiction  over 
the  Federal  Government,  a  writ  issued  by  either  of  these  officials 
cannot  be  enforced  in  the  United  States  Courts,  and  consequently 
Federal   Employees'   salaries   cannot  be   reached   in   this   manner. 

SALE  OF  ATTACHED  PROPERTY:  If  the  property  is  perish- 
able (such  as  fruit,  eggs,  or  the  like),  the  attaching  officer  will 
sell  it  at  once;  if  the  property  would  depreciate  in  value  during 
the  time  the  case  is  pending,  an  order  for  its  sale  at  once  may  be 
obtained  from  the  judge;  in  other  cases,  the  property  will  be  sold 
after  a  judgment  is  rendered  in  favor  of  the  creditor,  and  the 
amount  received  will  be  applied  to  pay  th«  judgment. 

Whenever  the  defendant  has  appeared  in  the  action,  he  may, 
upon  reasonable  notice  to  the  plaintiff,  apply  to  the  court  in  which 
the  action  is  pending,  or  to  the  judge  thereof,  for  an  order  to  dis- 
charge the  attachment,  wholly  or  in  part;  and  upon  the  execution 
of  the  undertaking  an  order  may  be  made,  releasing  from  the  op- 
eration of  the  attachment  any  or  all  of  the  property  attached; 
and  all  of  the  property  so  released,  and  all  of  the  proceeds  of  the 
sales  thereof,  must  be  delivered  to  the  defendant,  upon  the  justi- 
fication of  the  sureties  on  the  undertaking,  if  required  by  the  plain- 
tiff. Such  justification  must  take  place  within  five  days  after  no- 
tice of  the  filing  of  such  undertaking. 

MEASURE  OF  DAMAGES  FOR  ATTACHMENT  IMPROPERLY 
SUED  OUT:  If,  at  the  time  of  the  trial,  a  judgment  is  rendered 
in  favor  of  the  defendant,  he  is  entitled  to  his  costs,  but  he  can- 
not recover  anything  more  than  this  amount  from  the  plaintiff  per- 
sonally, unless  he  can  show  that  the  attachment  was  issued  wrong- 
fully, without  probable  cause,  and  with  malice.  In  other  v/ords, 
that  the  plaintiff  brought  the  action  and  had  the  attachment  levied. 


30  ATTACHMENT 


entirely  from  spite,  and  because  the  defendant  owed  him  nothing 
at  all.  The  defendant  in  such  case  is  entitled  to  exemplary  dam- 
ages, that  is,  to  damages  which  are  intended  to  be  punishment  to 
the  plaintiff  for  bringing  such  action. 

If  the  defendant  wins  the  case,  he  may  recover  damages  from 
the  sureties,  to  such  amount  as  he  may  have  sustained.  This  is  a 
very  uncertain  and  unsatisfactory  amount,  and  the  Supreme  Court 
has  not  made  any  positive  rule;  but  the  following,  among  others, 
are  measures  of  recovery — legal  interest  upon  money  deposited  in 
bank,  for  the  time  it  was  withheld  from  possession  of  defendant; 
goods,  or  corporation  stock,  which  may  have  depreciated  in  value, 
then  the  amount  of  such  depreciation,  especially  if  he  could  have 
sold  it  in  the  meantime;  if  his  business  be  closed  up  and  a  keeper 
placed  in  the  store,  he  could  not  recover  for  loss  of  business,  for 
expected  profits,  or  for  injury  to  his  financial  reputation;  he  might 
be  able  to  recover  attorney's  fees,  but  only  in  case  he  had  actually 
paid  them,  and  then  only  for  the  work  in  causing  the  attachment 
to  be  dissolved,  and  not  for  the  trial  of  the  case.  (See  Attorneys' 
Fees.) 

If  the  attachment  was  levied  upon  real  estate  the  defendant  may 
not  recover  for  any  impairment  of  credit,  for  his  inability  to  se- 
cure a  loan  upon  the  land  during  the  time  the  attachment  is  in 
force;  but  if  the  attachment  was  wrongful,  he  is  entitled  to  the 
market  value  of  the  property  during  its  detention,  but  not  its  value 
to  him. 

There  is,  however,  a  verj'  serious  question  as  to  whether  or  not 
the  defendant  can  recover  anything  at  all,  becau.se  he  always  has 
the  right  and  opportunity  to  file  a  bond  with  the  sheriff  in  release 
of  attachment,  and  thus  have  his  property  delivered  to  him,  and 
save  himself  any  losses.  The  courts  seem  to  be  divided  upon  the 
right  of  a  man  to  sit  quietly  by  and  see  his  property  being  taken 
and  held  by  the  sheriff,  and  not  do  anything  to  cause  it  to  be  released 
— and  yet  afterward  complain  of  loss  sustained  because  he  was  m- 
jured  on  account  of  his  own  quiescence. 

If  the  debtor  resides  out  of  the  state,  and  an  attachment  is  lev- 
ied upon  property  which  he  may  own  in  this  state,  a  judgment  may 
be  obtained  against  him  through  publication  of  summons  and  his 
non-appearance.  His  property  may  then  be  sold,  and  he  may  never 
know  of  it,  until  too  late  to  protest,  appear  or  appeal. 


AUCTION  31 


Great  wrongs  can  be  perpetrated  by  this  writ,  intentionally  or 
otherwise.  If  the  bondsmen  are  "men  of  straw"  (not  owning  the 
property  which  they  swear  is  theirs),  or  if  they  dispose  of  the  prop- 
erty shortly  after  they  sign  the  bond  (as  has  been  done  many 
times),  the  party  who  looks  to  them  for  damages  which  he  has 
suffered  by  reason  of  the  levying  of  the  writ — will  obtain  nothing. 

In  the  Justices'  Court  the  bond  is  not  less  than  fifty,  nor  more 
than  tv/o  hundred  dollars.  The  bondsmen  agree  that  they  will  pay 
all  damage  which  the  defendant  may  sustain — not  exceeding  the 
amount  of  this  bond,  provided  the  defendant  wins  in  the  action. 
In  the  Superior  Court  the  amount  is  not  less  than  $200,  and  may 
be  any  sum  which  the  clerk  thinks  is  proper — usually  about  one- 
half  the  amount  of  the  prayer  of  the  complaint. 

It  frequently  occurs  that  when  personal  property  is  attached  it 
is  found  to  be  mortgaged.  Oftentimes  this  mortgage  is  fraudulent, 
placed  there  for  just  such  an  occasion,  though  it  is  illegal  to  do  so. 
But  the  attachment  creditor,  however,  must  pay  off  the  mortgage 
in  full,  or  else  his  attachment  must  be  released.  If  he  does  so  pay 
the  mortgage,  he  succeeds  to  the  rights  of  the  holder,  and  the 
maker  of  the  mortgage  must  pay  him  in  the  future.  (See  Third 
Party  Claim.) 

If  there  is  a  mortgage  upon  real  property,  the  same  rule  would 
hold,  but  usually  the  equity  is  sufficiently  large,  so  there  is  this 
value  upon  which  the  attachment  rests.  Upon  any  sale  under  ex- 
ecution, of  real  property  which  was  attached,  the  person  buying 
takes  it  subject  to  the  previous  rights  of  the  mortgage,  and  sub- 
ject to  being  foreclosed,  unless  he  pays  it  off. 

On  an  appeal,  if  goods  have  been  taken  in  possession  of  the 
sheriff  or  constable  by  a  writ  of  attachment — another  writ  must  be 
taken  out,  with  another  bond,  or  else  the  property  will  be  released 
to   the   defendant,  by  the   attaching  officer. 

Auction:  See  Transfers;  Sales;  Personal  Property;  Pledge; 
Agency. 

A  sale  by  auction  is  a  sale  by  public  outcry  to  the  highest  bidder 
on  the  spot. 

It  is  complete  when  the  auctioneer  publicly  announces,  by  the 
fall  of  his  hammer,  or  in  any  other  customary  manner,  that  the 
thing  is  sold. 


32  AUCTIONEER 


Until  such  announcement  has  been  made,  any  bidder  may  with- 
draw his  bid,  if  he  does  so  in  a  manner  reasonably  sufficient  to 
bring  it  to  the  notice  of  the  auctioneer. 

When  a  sale  by  auction  is  made  upon  written  or  printed  condi- 
tions, such  conditions  cannot  be  modified  by  any  oral  declaration 
of  the  auctioneer,   except  so   far  as  they  are  for  his   own   benefit. 

If,  at  a  sale  by  auction,  the  auctioneer,  having  authority  to  do 
so,  publicly  announces  that  the  sale  will  be  without  reserve,  or 
makes  any  announcement  equivalent  to  it,  the  highest  bidder  in 
good  faith  has  an  absolute  right  to  the  completion  of  the  sale  to 
him;  and,  upon  such  a  sale,  bids  by  the  seller,  or  any  agent  for 
him,  are  void. 

The  employment,  by  the  seller,  of  any  person  to  bid  at  a  sale 
by  auction,  without  the  knowledge  of  the  buyer,  and  without  an 
intention  on  the  part  of  such  bidder  to  buy,  and  on  the  part  of  the 
seller  to  enforce  his  bid,  is  a  fraud  upon  the  buyer,  which  entitles 
him  to  rescind  his  purchase.      (See  Rescission.) 

When  property  is  sold  by  auction,  an  entry  made  by  the  auc- 
tioneer, in  his  sale  book,  at  the  time  of  the  sale,  specifying  the 
name  of  the  person  for  whom  he  sells,  the  thing  sold,  the  price, 
the  tei-ms  of  sale,  and  the  name  of  the  buyer,  binds  both  the  par- 
ties in  the  same  manner  as  if  made  by  themselves. 

An  auctioneer,  in  the  absence  of  special  authorization  or  usage  to 
the  contrai-j',  has  authority  from  the  seller,  only  as  follows:  (1)  To 
sell  by  public  sale  to  the  highest  bidder;  (2)  To  sell  for  cash  only, 
except  such  articles  as  are  usually  sold  on  credit  at  auction;  (3)  To 
warrant  in  like  manner  with  other  agents  to  sell;  (4)  To  prescribe 
reasonable  rules  and  terms  of  sale;  (5)  To  deliver  the  thing  sold, 
upon  payment  of  the  price;  (6)  To  collect  the  price;  and,  (7)  To 
do  whatever  else  is  necessary,  or  proper  and  usual,  in  the  ordinary 
course  of  business,  for  effecting  these  purposes.  An  auctioneer  has 
authority  from  a  bidder  at  the  auction,  as  well  as  from  the  seller, 
to  bind  both  by  a  memorandum  of  the  contract,  as  prescribed  in  the 
article  on  Sales. 

Auctioneer:      See  also  Auctions;  Agency. 

Any  citizen  of  this  state  may  become  an  auctioneer  for  the 
county  in  which  he  r-esides,  and  is  authorized,  to  sell  real  and  per- 
sonal property  at  public  auction,  on  giving  a  bond  for  the  faithful 
performance  of  his  duties,  and  on  the  payment  of  the  license. 


AUCTIONEER  33 


In  any  city  or  town  where  there  is  no  auctioneer,  the  sheriff  or  a 
constable  of  it  is  ex-officio  auctioneer,  and  is  permitted  to  sell  any 
property,  real  or  personal,  at  public  auction;  and  for  any  delin- 
quency as  such  ex-ofRcio  auctioneer  he  is  liable  on  his  official  bond. 

Every  auctioneer,  in  case  of  inability  to  attend  an  auction  by 
reason  of  sickness,  or  the  performance  of  any  duty  imposed  upon 
him  by  law,  or  during  a  temporary  absence  from  the  city  or  county 
within  which  he  is  auctioneer,  may  employ  a  co-partner  or  clerk  to 
hold  such  auction  in  his  name  and  behalf,  such  employee  to  take 
and  file  with  the  clerk  of  the  county  an  affidavit  faithfully  to  per- 
form the  duties  of  auctioneer.  But  any  auctioneer  may  employ  a 
crier  at  any  sale,  for  whose  acts  he  shall  be  responsible. 

No  auctioneer  is  permitted  to  transfer  his  license  to  any  other 
person  for  any  part  of  the  time  for  which  his  license  is  issued;  nor 
is  any  auctioneer  permitted  to  use  the  license  for  the  purpose  of 
transacting  an  auction  business  in  more  than  one  store  or  speci- 
fied place  of  business. 

Automobile  Law.  See  Agent;  Master  and  Servant;  Sales;  Title; 
Highways;  Liens;  Employer  and  Employee. 

The  1919  automobile  law  is  41  pages  long,  taking  up  too  much 
space  to  be  copied  in  a  work  of  this  kind.  California  has  an  auto  to 
each  seven  persons  of  its  population,  and  the  laws  pertaining  to  the 
operation  of  motor  vehicles  are  well  known — or,  if  not,  the  Motor 
Vehicle  Department  at  Sacramento  will  send  a  copy  to  any  one  ask- 
ing for  it.  There  are  some  general  rules,  however,  aside  from  the 
special  law. 

Every  owner  or  manager  of  an  automobile  garage,  or  any  agent  or 
employee  of  such  owner  or  manager,  or  any  other  person,  having  the 
care,  custody  or  possession  of  any  automobile,  who  takes,  hires,  runs, 
drives  or  uses  such  automobile,  or  who  takes  or  removes  from  it  any 
part  of  it,  without  the  owner's  consent,  is  punishable  by  a  fine  not 
exceeding  one  thousand  dollars,  or  by  imprisonment  in  the  county 
jail  not  exceeding  one  year,  or  by  both  such  fine  and  imprisonment. 

Any  person  who  throws  or  deposits  any  glass  bottle,  glass,  nails, 
tacks,  hoops,  wire,  cans  or  any  other  substance  likely  to  injure  any 
person,  animal  or  vehicle  upon  any  public  highway  in  the  State  of 
California  shall  be  guilty  of  misdemeanor. 

Under  the  new  Motor  Vehicle  Law,  a  valid  title  to  automobiles 
cannot  be  given  from  one  person  to  another  in  a  sale  unless  a  trans- 


34  AVIATION 


fer  is  registered  with  the  Motor  Vehicle  Department,  upon  their 
forms   provided. 

Aviation:  As  yet  there  is  no  developed  law  upon  this  subject — 
a  subject  which  involves  every  phase  of  the  laws,  both  statewide 
and  international.  The  earliest  case  in  America  was  reported  in 
New  York,  in  which  a  balloon  was  descending  near  the  ground,  and 
its  occupant  called  upon  people  to  help  him.  The  balloon  dragged 
through  a  planted  ground,  and  the  people  running  after  it  tram- 
pled down  the  crops.  The  owner  of  the  garden  was  awarded  dam- 
ages against  the  balloonist  for  the  loss  of  his  crops,  whether  made 
by  the  people  or  by  the  balloon.  This  would  undoubtedly  be  the  law 
today,  when  property  or  persons  were  injured  by  the  act  of  the 
aviator  or  his  machine — whether  balloon   or  flying  machine. 

But  the  problem  of  what  rights  the  owner  of  land  has  to  prevent 
any  one  from  flying  in  the  air  over  his  land,  or  to  prevent  him  from 
so  doing  by  injunction — will  not  be  settled  for  many  years,  prob- 
ably, as  it  is  entirely  a  new  field  of  law.  It  would  seem  that  the 
old  rule  which  said  that  the  owner  of  the  soil  also  controlled  the 
earth  beneath  and  the  air  above,  must  now  be  superseded  by  the 
additional  words  "provided  that  such  control  be  limited  to  the  ex- 
clusion only  of  that  which  may  be  dangerous  to  him  or  his  prop- 
erty." That  is,  he  could  not  prevent — or  collect  damages  from — a 
machine  which  merely  flew  over  his  land,  but  which  did  no  harm, 
if  the  height  was  a  reasonable  one  in  which  to  fly.  But  if  the  ma- 
chine flew  too  near  the  ground,  frightening  horses  by  its  noise,  an- 
noying people  or  damaging  his  fields  in  landing — he  would  be  en- 
titled to  damages  as  in  a  recent  French  case. 

If  an  aviator  dropped  tools,  or  parts  of  the  machinery,  or  bags  of 
sand,  etc.,  he  would  be  liable  in  damages  if  person  or  property 
was  injured. 

Of  course,  if  an  aeroplane  flew  over  the  free  sea,  no  one  could 
ask  for  damage  for  such  trespass — and,  in  such  case,  the  opera- 
tion of  the  plane  would  probably  be  governed  by  the  laws  of  Ship- 
ping. If  one  flew  over  boundaries  of .  countries,  it  would  come 
under  the  branch  of  international  law,  especially  if  it  were  being 
used  for  smuggling,  or  bringing  persons  from  one  nation  into  an- 
other wrongfully.  (See  Shipping;  Water  Law;  Agency;  Master 
and  Servant;  Employer  and  Employee.) 

Baggage:     See  Carriers;  Hotels;  Liens. 


BAGGAGE  35 


A  common  carrier  of  persons,  unless  his  vehicle  is  fitted  for  the 
reception  of  persons  exclusively,  must  receive  and  carry  a  reason- 
able amount  of  baggage  for  each  passenger  without  charge,  except 
for  an  excess  of  weight  over  one  hundred  pounds  to  a  passenger; 
if  such  carrier  is  a  proprietor  of  a  stage  line,  he  need  not  receive 
and  carry  for  each  passenger  by  such  stage  line,  without  charge, 
more  than  sixty  pounds  of  baggage. 

Luggage  may  consist  of  whatever  the  passenger  takes  with  him 
for  his  personal  use  and  convenience,  according  to  the  habits  or 
wants  of  the  particular  class  to  which  he  belongs,  either  with  refer- 
ence to  the  important  necessities  or  to  the  ultimate  purposes  of  his 
journey.  Luggage  within  the  meaning  of  this  section  shall  include 
the  samples,  case,  wares,  appliances  and  catalogs  of  commercial 
travelers  or  their  employers,  used  by  them  for  the  purpose  of  trans- 
acting their  business  and  carried  with  them  solely  for  that  purpose, 
when  securely  packed  and  locked  in  substantial  trunks  or  sample 
cases  of  convenient  shape  and  weight  for  handling.  No  crate, 
cover  or  other  protection  shall  be  required  for  any  bicycle  carried 
as  luggage,  but  no  passenger  shall  be  entitled  to  carry  as  luggage 
more  than  one  bicycle. 

The  liability  of  a  carrier  for  luggage  received  by  him  with  a 
passenger  is  the  same  as  that  of  a  common  carrier  of  property. 

A  common  carrier  must  deliver  every  passenger's  luggage, 
whether  within  prescribed  weight  or  not,  immediately  upon  the 
arrival  of  the  passenger  at  his  destination;  and,  unless  the  vehicle 
would  be  overcrowded  or  overloaded  thereby,  must  carry  it  on  the 
same  vehicle  by  which  he  carries  the  passengers  to  whom  it  be- 
longs. Except  that  where  luggage  is  transported  by  rail,  it  must 
be  checked  and  carried  in  a  regular  baggage  car;  and  whenever 
passengers  neglect  or  refuse  to  have  their  luggage  so  checked  and 
transported,   it  is  carried   at   their  risk. 

Bail: 

All  persons  shall  be  bailable  by  sufficient  sureties,  unless  for 
capital  offenses  when  the  proof  is  evident  or  the  presumption  great. 
Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed; 
nor  shall  cruel  or  unusual  punishments  be  inflicted.  Witnessei 
shall  not  be  unreasonably  detained,  nor  confined  in  any  room  where 
criminals  are  actually  imprisoned.  (See  Arrest.) 
Bailment:     See  Deposit  of  Personal  Property. 


36  BANKRUPTCY 


Baler:      See  Hay  Baler;  Weight*. 

Bank  Checks:     See  Checks. 

Banker:  See  Liens;  Negotiable  Instruments;  Banking  Law; 
Checks. 

Banking  Law  is  contained  in  about  60  pages  of  the  Code.  It  is 
highly  technical  and  used  almost  wholly  for  the  guidance  of  the 
banking  institutions,  under  the  direction  of  the  Bank  Commis- 
sioner. These  phases  of  this  law  which  seem  to  apply  to  every  day 
business  will  be  found  under  their  respective  headings,  such  as 
checks,  forgeries,  etc. 

Bankruptcy: 

While  this  law  is  not  strictly  a  California  law,  but  is  a  federal  law, 
yet  it  is  used  to  the  same  extent  as  if  it  belonged  exclusively  to  tTlis 
State. 

This  article  was  specially  written  for  this  work  by  Pierson  Hall, 
Esq.,  of  the  Los  Angeles  Bar.  Mr.  Hall  has  appeared  in  over  500  bank- 
ruptcy cases  during  the  past  three  years,  in  the  Los  Angeles  Dis- 
trict. 

Each  of  the  following  steps  is  essential  to  the  proper  administra- 
tion and  successful  termination  of  the  proceedings: 

(1)  Filing  of  the  petition. 

(2)  Adjudicating  upon  the  petition. 

(3)  Administration  of  the  estate. 

(4)  Discharge  of  the  bankrupt. 

Voluntary  petitions  may  be  filed  in  the  district  in  which  the  appli- 
cant has  resided  for  the  greater  part  of  the  six  months  immediately 
preceding  the  filing.  He  may  reside  in  any  district  for  three  months 
and  one  day,  and  may  then  file  his  petition  in  that  district,  regard- 
less of  where  his  creditors  are  located.  But  his  residence  must  be 
bona  fide.  He  cannot  accumulate  debts,  and  then  move  to  another 
district  long  enough  to  give  him  the  right  to  file  a  petition,  for  the 
purpose  of  beating  his  creditors,  but  intending  to  return  to  his  real 
home. 

Involuntary  petitions  must  be  filed  in  the  district  where  the 
bankrupt  resides. 

Acts  of  bankruptcy  by  a  person  are  (1)  conveying,  transferring, 
concealing,  or  removing,  or  permitting  to  be  concealed  or  removed, 
any  part  of  his  property  with  intent  to  hinder,  delay  or  defraud  his 
creditors,  or  any  of  them;  or  (2)  while  insolvent,  having  transferred 


BANKRUPTCY  37 


any  portion  of  his  property  to  one  or  more  of  his  creditors  with  in- 
tent to  prefer  such  creditors  over  his  other  creditors;  (a  mortgage 
of  either  real  or  personal  property  is  considered  to  be  such  a  trans- 
fer) ;  or,  (3),  having  suffered  or  permitted,  while  insolvent,  any 
creditor  to  obtain  preference  through  legal  proceedings,  and  not  hav- 
ing vacated  or  discharged  such  preference  at  least  five  days  before 
a  sale  or  final  disposition  of  any  property  affected  by  such  prefer- 
ence; or  (4)  made  a  general  assignment  for  the  benefit  of  his  credi- 
tors; or,  being  insolvent,  applied  for  a  receiver  or  trustee  for  his 
property;  or  because  of  insolvency  a  receiver  or  trustee  has  been  put 
in  charge  of  his  property  under  the  laws  of  a  State,  of  a  Territory, 
or  of  the  United  States;  or  (5)  admitted  in  writing  his  ability  to 
pay  hjs  debts  and  his  willingness  to  be  adjudged  a  bankrupt  on  that 
ground. 

INSOLVENT:  Whenever  the  total  value  of  a  person's  property 
(exclusive  of  any  property  which  he  may  have  conveyed,  transferred, 
concealed,  or  removed,  or  permitted  to  be  concealed,  or  removed, 
with  intent  to  defraud,  hinder  or  delay  his  creditors),  at  a  fair  valua- 
tion, shall  not  be  sufficient  in  amount  to  pay  his  debts — he  is  said 
to  be  insolvent. 

VOLUNTARY  BANKRUPTS:  Any  person  or  corporation  (except 
a  municipal,  railroad,  insurance  or  banking  corporation),  may  file  a. 
VOLUNTARY  petition. 

SCHEDULES:  With  every  petition  in  bankruptcy  there  must  be 
filed  a  set  of  schedules  in  triplicate,  showing  the  amount  and  kind  of 
property  of  the  petitioner,  the  location  of  it,  its  money  value  in  de- 
tail, a  list  of  his  creditors  (showing  their  residence,  if  known  that 
fact  to  be  stated),  the  amounts  due  each  of  them,  the  consideration 
for  them,  the  security  held  by  them,  if  any,  and  a  claim  for  such 
exemptions  as  he  may  be  entitled  to,  all  properly  signed  and  sworn 
to  before  an  officer  authorized  to  take  oaths.  These  schedules  may 
be  amended  if  errors  or  omissions  are  made  in  them. 

In  voluntary  bankruptcy  petitions  the  bankrupt  must  prepare 
these  schedules;  but  in  involuntary  proceedings,  they  are  prepared 
by  the  creditors. 

VOLUNTARY  BANKRUPTCY  OF  A  CORPORATION:  A  resolu- 
tion by  the  Board  of  Directors  must  be  regularly  passed  authorizing 
the  filing  the  petition  in  bankruptcy,  and  a  copy  attached  to  the 
petition  or  filed  with  the  papers  in  the  case.  The  petition  and  sched- 
ules must  be  signed  by  one  of  the  officers  of  the  corporation    (us- 


38  BANKRUPTCY 


ually  the  president,  secretary  or  treasurer) ,  but  it  is  better  that  they 
be  signed  by  both  the  president  and  the  secretary. 

But  the  bankruptcy  of  a  corporation  does  not  release  its  officers, 
directors,  or  stockholders,  as  such,  from  any  liability  under  the  laws 
of  a  State  or  Territory  of  the  United  States. 

A  PARTNERSHIP:  During  the  continuation  of  the  partnership 
business,  or  after  its  dissolution  and  before  the  final  settlement  of 
it,  may  be  adjudged  a  bankrupt,  and  may  file  a  voluntary  petition. 

The  schedules  should  show  the  partnership  liabilities  and  debts, 
and  the  assets.  A  partnership  is  treated  as  a  distinct  person,  separate 
from  each  of  the  partners.  The  bankruptcy  of  a  partnership  does  not 
carry  with  it  the  bankruptcy  of  each  partner.  The  assets  are  sold 
and  applied  upon  the  payment  of  the  debts;  after  paying  these,  the 
remaining  assets  (if  any)  are  returned  to  the  individual  partners, 
or  applied  on  the  personal  debts  of  each  partner  (if  he  is  in  bank- 
ruptcy). 

In  making  out  the  schedules  of  a  partnership,  only  the  debts  of  the 
partnership  are  listed,  while  in  making  out  the  schedules  of  the  indi- 
vidual, the  debts  of  both  the  individual  and  the  co-partnership  are 
listed  (because  each  member  of  the  partnership  is  liable  for  the 
whole  debts  of  the  firm,  unless  it  is  a  limited  partnership). 

When  a  partnership  files  a  voluntary  petition,  it  must  be  joined  in 
by  all  the  partners,  otherwise  it  then  becomes  an  involuntary  peti- 
tion, and  subject  to  contest  by  those  partners  who  have  not  joined 
in  it,  as  well  as  the  creditors. 

Partners  sometimes  distribute  the  assets  of  a  partnership  among 
themselves,  and  then  file  a  petition,  listing  the  partnership  debts 
alone,  thinking  to  become  absolved  of  all  debts,  partnership  and  per- 
sonal. This  accomplishes  nothing.  Each  member  of  the  partnership 
is  liable  for  all  its  debts,  even  though  the  partnership  should  be  dis- 
charged from  these  same  debts. 

HUSBAND  AND  WIFE  are  treated  as  a  partnership.  To  obtain 
their  discharge,  separate  proceedings  must  be  carried  on,  except 
that  each  should  describe  and  list  the  same  debts  and  the  community 
property  in  their  schedules — as  well  as  the  separate  property  of 
either. 

INVOLUNTARY  BANKRUPTS:  Any  natural  person  (except  a 
wage  earner  or  a  person  engaged  chiefly  in  farming  or  the  tillage  of 
the  soil),  any  unincorporated  company,  and  any  moneyed  business 
or  commercial  corporation   (except  a  municipal,  railroad,  insurance 


BANKRUPTCY  39 


or  bankinc:  corporation),  owing:  debts  to  the  amount  of  $1000.00  or 
over,  may  be  adjudged  an  involuntary  bankrupt. 

Three  or  more  creditors  who  have  provable  claims  against  any 
person  which  amount  in  the  aggregate  not  to  exceed  the  value  of 
securities  held  by  such  creditors  of  $500.00  or  over;  or  if  all  of  the 
creditors  of  the  debtor  are  less  than  twelve  in  number,  then  one  of 
such  creditors  whose  claim  equals  $500.00  may  file. 

In  computing  such  necessary  number  of  creditors,  those  shall  not 
be  counted  who  (1)  were  employed  by  him  at  the  time  of  filing  the 
petition  or  (2)  who  are  related  by  consanguinity  or  affinity  within 
the  third  degree  and  have  not  joined  in  the  involuntary  petition. 

Such  a  petition  must  be  filed  within  four  months  after  the  com- 
mission of  an  act  of  bankruptcy,  such  as  (1)  the  date  of  the  record- 
ing or  registering  of  the  transfer  or  assignment  (when  the  act  con- 
sists in  having  made  a  transfer  of  any  of  his  property  with  intent 
to  hinder,  delay,  or  defraud  his  creditors,  or  for  the  purpose  of  giv- 
ing a  preference),  or  (2)  a  general  assignment  for  the  benefit  of 
his  creditors,  if  by  law  such  recording  or  registering  is  required  or 
permitted,  or  (3)  if  it  is  not,  then  from  the  date  when  the  benefi- 
ciary takes  notorious,  exclusive,  or  continuous  possession  of  the 
property  (unless  the  petitioning  creditors  have  received  actual  notice 
of  such  transfer  or  assignment.) 

When  filed  against  a  partnership  (the  same  as  against  a  person 
or  a  corporation),  there  is  this  difference — any  member  of  the  part- 
nershp  may  come  in  and  contest  the  bankruptcy  on  the  ground  that 
the  partnership  is  not  solvent,  because  any  one  of  its  members  or 
even  all  of  them,  as  individuals,  may  be  able  to  pay  all  the  partner- 
ship debts;  each  member  being  liable  for  all  the  debts  of  the  firm. 
Some  courts  have  decided  that  a  partnership  cannot  be  adjudged  an 
involuntary  bankrupt  unless  each  of  its  members  is  insolvent.  One 
partner  may  file  an  involuntary  petition  against  the  partnership, 
and  the  other  partners  or  any  creditor  may  come  in  and  defend 
against  it.  Each  case  with  its  different  set  of  facts  should  be  taken 
up  with  one  skilled  in  Bankruptcy  practice. 

THE  ADJUDICATION:  In  voluntary  cases  the  adjudication  is 
ordinarily  made  as  a  matter  of  course  upon  the  proper  showing  in 
the  petition  and  schedules. 

On  an  adjudication  of  bankruptcy  upon  an  involuntary  petition, 
the  bankrupt  must  prepare  and  file  the  schedules;  in  case  of  his 
failure,  the  Court  has  power  to  direct  a  creditor  or  other  person  to 


40  BANKRUPTCY 


prepare  and  file  the  schedules  for  the  bankrupt:  If  the  bankrupt  is 
absent  or  cannot  be  found  the  creditors  must  file  such  schedule  with- 
in five  days  after  the  adjudication. 

The  involuntary  petition  must  be  served  upon  the  alleged  bank- 
rupt by  a  United  States  Marshal,  or  a  person  specially  appointed  for 
that  purpose,  and  the  alleged  bankrupt  is  given  15  days  (unless  the 
Judge  grants  him  further  time)  in  w^hich  to  answer. 

A  trial  then  takes  place  (as  in  any  other  action  at  law)  at  which 
the  person  is  either  adjudicated  to  be  a  bankrupt,  or  the  petition  is 
dismissed. 

RECEIVERS: 

Whenever  such  a  petition  is  filed,  and  an  application  is 
made  for  a  receiver,  the  petitioner  or  applicant  shall  file  in  the  same 
court  a  bond  with  at  least  two  good  and  sufficient  sureties  who 
shall  reside  within  the  jurisdiction  of  said  court,  to  be  approved  by 
the  court  or  a  judge  of  it,  in  such  sum  as  the  court  shall  direct,  con- 
ditioned for  the  payment,  in  case  such  petition  is  dismissed,  to  the 
alleged  bankrupt,  his  or  her  personal  representatives,  of  all  costs,  ex- 
penses, and  damages  occasioned  by  such  seizure,  taking  and  deten- 
tion of  the  property. 

If  such  petition  be  dismissed  by  the  Court  or  withdrawn  by  the 
petitioner,  the  alleged  bankrupt  is  allowed  all  costs,  counsel  fees, 
expenses,  and  damages  occasioned  by  such  seizure,  taking,  or  de- 
tention of  such  property.  These  amounts  are  decided  by  the  Court, 
and  are  to  be  paid  by  the  persons  signing  the  bond. 

ORDER  OF  REFERENCE:  After  the  adjudication  is  made,  an 
order  called  the  Order  of  Reference  is  entered,  directing  the  bank- 
rupt to  appear  before  a  Referee  in  Bankruptcy,  and  afterwards  all 
of  the  proceedings  in  the  case  are  heard  before  the  Referee,  except 
those  required  by  the  bankruptcy  act  to  be  taken  before  the  Judge; 
such  as  applications  for  discharge,  or  for  the  approval  of  a  composi- 
tion, or  for  an  injunction  to  stay  proceeding  of  a  Court  or  officer 
of  the  United  States  or  of  a  State.  The  Judge  may  refer  any  issue 
to  the  Referee. 

DUTIES  OF  BANKRUPTS:  The  bankrupt  shall  (1)  attend  the 
first  meeting  of  his  creditors,  if  directed  by  the  Court  or  a  Judge  of 
it  to  do  so;  (2)  comply  with  all  lawful  orders  of  the  Court;  (3)  ex- 
amine the  correctness  of  all  proofs  of  claims  filed  against  his  estate; 
(4)  execute  and  deliver  such  papers  as  shall  be  ordered  by  the 
Court;    (5)    execute  to  his  trustee  transfers  of  all  his  property  in 


BANKRUPTCY  41 


foreign  countries;  (6)  immediately  inform  his  trustee  of  any  attempt, 
by  his  creditors  or  other  persons,  to  evade  the  provisions  of  this 
Act,  coming  to  his  knowledge;  (7)  in  case  of  any  person  having  to 
his  knowledge  proved  a  false  claim  against  his  estate,  disclose  that 
fact  immediately  to  his  trustee;  (8)  prepare,  make  oath  to,  and  file 
in  court  within  ten  days  the  schedules  before  described,  unless 
further  time  is  granted,  after  the  adjudication,  if  an  involuntary 
bankrupt,  and  with  the  petition  if  a  voluntary  bankrupt,  a  schedule 
of  his  property,  showing  the  amount  and  kind  of  property,  the  loca- 
tion of  it,  its  money  value  in  detail,  and  a  list  of  his  creditors,  show- 
ing their  residences,  if  known,  if  unknown,  that  fact  to  be  stated, 
the  amounts  due  each  of  them,  the  consideration  of  it,  the  security 
held  by  them,  if  any,  and  a  claim  for  such  exemptions  as  he  may  be 
entitled  to,  all  in  triplicate;  and  (9)  when  present  at  the  first  meet- 
ing of  his  creditors,  and  at  such  other  times  as  the  court  shall  order, 
submit  to  an  examination  concerning  the  conducting  of  his  business, 
the  cause  of  his  bankruptcy,  his  dealings  with  his  creditors  and  other 
persons,  the  amount,  kind,  and  whereabouts  of  his  property,  and,  in 
addition,  all  matters  which  may  affect  the  administration  and  set- 
tlement of  his  estate.  He  must  answer  all  these  questions,  except 
those  which  might  tend  to  incriminate  him,  but  none  of  the  testi- 
mony shall  be  offered  in  evidence  against  him  in  any  criminal  pro- 
ceeding. 

But  he  shall  not  be  required  to  attend  a  meeting  of  his  creditors, 
or  at  or  for  an  examination  at  a  place  more  than  one  hundred  and 
fifty  miles  distant  from  his  home  or  principal  place  of  business,  or 
to  examine  claims  except  when  presented  to  him,  unless  ordered  by 
the  Court,  or  a  Judge  of  it,  for  cause  shown.  He  shall  be  paid  his 
actual  expenses  from  the  estate,  when  examined  or  required  to  at- 
tend at  any  place  other  than  the  city,  town,  or  village  of  his  resi- 
dence. 

DEATH  OR  INSANITY  OF  BANKRUPTS:  The  death  or  in- 
sanity of  a  bankrupt  shall  not  suspend  the  proceedings,  but  they  shall 
be  conducted  and  concluded  in  the  same  manner,  so  far  as  possible, 
as  though  he  had  not  died  or  become  insane.  In  case  of  death,  the 
widow  and  children  shall  be  entitled  to  all  rights  of  dower  and  allow- 
ance fixed  by  the  laws  of  the  State  of  the  bankrupt's  residence. 

PROTECTION  AND  DETENTION  OF  BANKRUPTS:  A  bank- 
rupt is  exempt  from  arrest  upon  civil  process  except  in  the  follow- 
ing cases:   (1)   When  issued  from  a  Court  of  Bankruptcy  for  con- 


42  BANKRUPTCY 


tempt  or  disobedience  of  its  lawful  orders;  (2)  when  issued  from  a 
State  Court  having  jurisdiction,  and  served  within  such  State,  upon 
a  debt  or  claim  from  which  his  discharge  in  bankruptcy  would  not 
be  a  release,  and  in  such  case  he  shall  be  exempt  from  such  arrest 
when  in  attendance  upon  a  court  of  bankruptcy  or  engaged  in  the 
performance  of  a  duty  imposed  by  this  Act. 

At  any  time  after  the  filing  of  a  petition  by  or  against  a  per- 
son (and  before  the  expiration  of  one  month  after  the  qualification 
of  the  trustee),  upon  satisfactory  proof  by  the  affidavits  of  at 
least  two  persons  that  a  bankrupt  is  about  to  leave  the  district  in 
which  he  resides  (or  has  his  principal  place  of  business)  to  avoid 
examination,  and  that  his  departure  will  defeat  the  proceedings 
in  bankruptcy,  the  Judge  may  issue  a  warrant  to  the  marshal, 
directing  him  to  bring  such  bankrupt  forthwith  before  the  Court 
for  examination.  If  upon  hearing  the  evidence  of  the  parties  it 
appears  to  the  Court  that  the  charges  are  true  and  that  it  is  neces- 
sary, he  shall  order  the  marshal  to  keep  the  bankrupt  in  custody 
not  exceeding  ten  days,  but  not  to  imprison  him,  until  he  shall  be 
examined  and  released  or  give  bail  conditioned  for  his  appear- 
ance for  examination,  from  time  to  time,  not  exceeding  in  all  ten 
days,  as  required  by  the  Court,  and  for  his  obedience  to  all  lawful 
orders  made  in  reference  to  it. 

EXAMINATION  OF  BANKRUPT'S  WIFE  AND  OTHER  WIT- 
NESSES: Upon  application  of  any  officers,  bankrupt,  or  credi- 
tor, a  Court  of  Bankruptcy  may,  by  order,  require  any  desig- 
nated person,  including  the  bankrupt  and  his  wife,  to  appear  in 
court  or  before  a  referee  or  the  Judge  of  any  State  Court,  to  be 
examined  concerning  the  acts,  conduct,  or  property  of  a  bankrupt 
whose  estate  is  in  process  of  administration;  Provided,  that  the 
wife  may  be  examined  only  touching  business  transacted  by  her 
or  to  which  she  is  a  party,  and  to  determine  the  fact  whether  she 
has  transacted  or  been  a  party  to  any  business  of  the  bankrupt. 

CONTEMPTS  BEFORE  REFEREES:  A  person  shall  not,  in 
proceedings  before  a  referee,  (1)  disobey  or  resist  any  lawful 
order,  process,  or  writ;  (2)  misbehave  during  a  hearing  or  so  near 
the  place  of  it  as  to  obstruct  it;  (3)  neglect  to  produce  any  per- 
tinent document,  after  having  been  ordered  to  do  so;  or  (4)  re- 
fuse to  appear  after  having  been  subpoenaed,  or,  upon  appearing, 
refuse  to  take  the  oath  as  a  witness,  or,  after  taking  the  oath, 
refuse  to   oe  examined  according  to  law.      But  no  person   shall  be 


BANKEUPTCY  43 


required  to  attend  as  a  witness  before  a  referee  at  a  place  outside 
of  the  State  of  his  residence,  and  more  than  one  hundred  mile§ 
from  such  place  of  residence,  and  only  in  case  his  lawful  mileage 
and  fee  for  one  day's  attendance  shall  be  first  paid  or  tendered 
to  him. 

The  referee  shall  certify  the  facts  to  the  judge,  if  any  person 
shall  do  any  of  the  things  forbidden.  The  judge  shall  thereupon, 
in  a  summary  manner,  hear  the  evidence  as  to  the  acts  complained 
of,  and,  if  it  is  such  as  to  warrant  him  in  so  doing,  punish  such 
person  in  the  same  manner  and  to  the  same  extent  as  for  a  con- 
tempt committed  before  the  Court  of  Bankruptcy,  or  commit  such 
person  upon  the  same  conditions  as  if  the  doing  of  the  forbidden 
act  had  occurred  with  reference  to  the  process  of,  or  in  the  pres- 
ence of,  the  Court. 

OFFENSES:  (a)  A  person  shall  be  punished  by  imprisonment 
for  a  period  not  to  exceed  five  years,  upon  conviction  of  the  of- 
fense of  having  knowingly  and  fraudulently  appropriated  to  his 
own  use,  embezzled,  spent,  or  unlawfully  transferred  any  property 
or  secreted  or  destroyed  any  document  belonging  to  a  bankrupt 
estate  which  came  into  his  charge  as  trustee. 

ADMINISTRATION  OF  ESTATE:  In  general  the  administra- 
tion of  the  estate  consists  of  the  sale  of  all  of  the  property  of  the 
bankrupt,  and  the  distribution  of  its  proceeds  to  the  creditors. 

Before  the  referee  calls  the  first  meeting  of  creditors,  it  is  the 
duty  of  the  bankrupt  to  deposit  with  the  referee  the  money  that 
it  will  necessarily  cost  the  referee  to  advertise  the  meeting,  mail 
notices  to  creditors,  and  other  general  .expenses.  (About  $11  to 
$15.) 

The  rules  of  the  District  Court  for  the  different  districts  fix  the 
amount  collectable  by  the  referee  for  calling  the  first  meeting,  as 
well  as  all  amounts  collectable  by  the  referee  for  expenses. 

MEETINGS  OF  CREDITORS:  All  meetings  of  creditors  are 
held  at  the  office  of  the  referee. 

After  the  first,  other  meetings  of  creditors  may  be  held  at  any 
time  upon  call  of  the  Court  or  referee.  If  one-fourth,  or  more, 
in  number  of  the  creditors  who  have  filed  and  proven  their  claims 
make  such  a  request  in  writing,  a  meeting  must  be  called. 

CALLING  FIRST  MEETING  OF  CREDITORS:  After  the  mak- 
ing of  the  order  of  reference,  the  referee  should  call  a  first  meet- 
ing of  the  creditors  of  the  bankrupt,   at  the   county  seat   of   the 


44  BANKRUPTCY 


county  in  which  the  bankrupt  has  had  his  principal  place  of  busi- 
ness, or  has  resided;  or  if  that  place  is  manifestly  inconvenient, 
then  at  such  place  as  is  most  convenient  to  all  the  parties. 

NOTICES  TO  CREDITORS:  (a)  Creditors  shall  have  at  least 
ten  days  notice  by  mail,  to  their  respective  addresses  as  they  ap- 
pear in  the  list  of  creditors  of  the  bankrupt,  or  as  afterwards  filed 
with  the  papers  in  the  case  by  the  creditors,  unless  they  waive 
notice  in  writing,  of  (1)  all  examinations  of  the  bankrupt;  (2)  all 
hearings  upon  applications  for  the  confirmation  of  compositions  or 
the  discharge  of  bankrupts;  (3)  all  meetings  of  creditors;  (4)  all 
proposed  sales  of  property;  (5)  the  declaration  and  time  of  pay- 
ment of  dividends;  (6)  the  filing  of  the  final  accounts  of  the 
trustee,  and  the  time  when  and  the  place  where  they  will  be  ex- 
amined and  passed  upon;  (7)  the  proposed  compromise  of  any 
controversy,  and   (8)   the  proposed  dismissal  of  the  proceedings. 

NOTICE  TO  CREDITORS  OF  FIRST  MEETING:  Notice  to 
creditors  of  the  first  meeting  shall  be  published  at  least  once  and 
may  be  published  such  number  of  additional  times  as  the  Court 
may  direct;  the  last  publication  shall  be  at  least  one  week  before 
the  date  fixed  for  the  meeting.  Other  notices  may  be  published 
as  the  Court  shall  direct. 

OBJECT  OF  FIRST  MEETING  OF  CREDITORS:  The  object 
of  the  first  meeting  of  creditors  is  to  select  a  trustee,  examine  the 
bankrupt,  and  other  witnesses  respecting  the  acts,  conduct  and 
property  of  the  bankrupt,  file  claims  against  the  estate,  and  to 
take  such  other  steps  as  may  be  pertinent  and  necessary  for  the 
promotion  of  the  best  interests  of  the  estate  and  affairs  of  the 
bankrupt. 

CREDITORS  RIGHTS  AND  DUTIES:  Before  creditors  can 
participate  in  any  meeting  of  creditors  and  have  a  right  to  object 
to  any  proceeding,  it  is  necessary  for  them  to  file  their  claims. 
Before  they  can  vote  upon  the  selection  or  a  trustee,  or  other  mat- 
ter, their  claims  must  be  allowed  by  the  referee  or  Court.  The 
prudent  thing  to  do  is  to  file  the  creditors'  claim  at  once  (unless 
perhaps,  there  are  no  assets  in  the  estate,  and  the  filing  would  be 
a  needless  and  useless  expense). 

Proof  of  claims  consist  of  a  statement  under  oath,  in  writing, 
signed  by  a  creditor,  describing  the  claim,  its  consideration,  whe- 
ther any,  and,  if  so,  what  securities  are  held  for  it;  whether  any, 


BANKEUPTCY  45 


and,  if  so,  what  payments  have  been  made  on  it;  that  the  sum 
claimed  is  justly  owing  from  the  bankrupt  to  the  creditor.  A  form 
is  prescribed  by  the  Supreme  Court  of  the  United  States  to  be  used 
in  filling  out  claims.  While  proving  a  claim  is  apparently  a  simple 
matter,  it  should  be  attended  to  with  great  care,  as  it  may  be  dis- 
allowed by  technical  objections. 

TO  PROVE  CLAIMS:  Claims  cannot  be  proved  against  a  bank- 
rupt estate  after  one  year  from  the  adjudication;  or  if  they  are 
liquidated  by  litigation  and  the  final  judgment  on  them  is  ren- 
dered within  thirty  days  before  or  after  the  expiration  of  such 
time,  then  within  sixty  days  after  the  rendition  of  such  judgment. 
But  the  right  of  infants  and  insane  persons  without  guardians, 
without  notice  of  the  proceedings,  may  continue  six  months  longer. 

CLAIMS  FOUNDED  ON  NOTE  OR  OTHER  WRITTEN  IN- 
STRUMENT: Whenever  a  claim  is  founded  upon  an  instrument  in 
writing,  such  instrument,  unless  lost  or  destroyed,  must  be  filed 
with  the  proof  of  claim.  If  it  is  lost  or  destroyed,  a  statement  of 
such  fact  and  of  the  circumstances  of  such  loss  or  destruction 
must  be  filed  under  oath  with  the  claim.  After  the  claim  is  al- 
lowed or  disallowed,  such  instrument  may  be  withdrawn  by  per- 
mission of  the  Court,  upon  leaving  a  copy. 

TIME  WHEN  ALLOWED:  Claims  which  have  been  duly  proved 
shall  be  allowed,  upon  receipt  by  or  upon  presentation  to  the 
Court,  unless  objection  to  their  allowance  shall  be  made  by  par- 
ties in  interest,  or  their  consideration  be   continued. 

OBJECTIONS  TO  CLAIMS:  A  properly  prepared  claim  estab- 
lishes a  prima  facie  case  for  the  person  filing  the  claim,  and  the 
burden  of  disproving  it  rests  upon  the  person  objecting  to  the 
allowance  of  the  claim. 

Objections  are  heard  and  determined  as  soon  as  the  convenience 
of  the  Court  and  the  best  interests  of  the  estates  and  the  claimants 
permit.  Upon  filing  objections,  it  is  the  duty  of  the  referee  to  set 
it  down  for  hearing,  notify  the  claimant  and  objector  of  the  date, 
and  proceed  to  hear  the  issue  and  allow  or  disallow  the  claims. 
The  referee  may  disallow  a  claim  on  his  own  motion,  on  the 
ground  that  it  does  not  show  facts  sufficient  on  its  face  to  con- 
stitute a  valid  claim. 

Claims  which  have  been  allowed  may  be  reconsidered  for  cause 
and   reallowed   or  rejected   in   whole   or  in   part    (according   to   the 


46  BANKRUPTCY 


equities  of  the  case),  before  the  estate  has  been  closed,  but  not 
after. 

VOTERS  AT  CREDITORS'  MEETINGS:  Creditors  shall  pass 
upon  matters  submitted  to  them  at  their  meetings  by  a  majority 
vote  in  number  and  amount  of  claims  of  all  creditors  whose 
claims  have  been  allowed  and  are  present,  except  as  herein  noted. 

VOTING  POWER  OF  SECURED  CREDITORS:  Claims  of  se- 
cured creditors  and  those  who  have  priority  may  be  allowed,  to 
enable  such  creditors  to  participate  in  the  proceedings  at  credi- 
tors' meetings  held  before  the  determination  of  the  value  of  their 
securities  or  priorities,  but  shall  be  allowed  for  such  sums  only  as 
may  to  the  Courts  seem  to  be  owing,  over  and  above  the  value  of 
their  securities  or  priorities. 

Creditors  holding  claims  which  are  secured  or  have  priority  are 
not,  in  respect  to  such  claims,  entitled  to  vote  at  creditors'  meet- 
ings; nor  are  such  claims  counted  in  computing  either  the  number 
of  creditors  or  the  amount  of  their  claims,  unless  the  amounts  of 
such  claims  exceed  the  values  of  such  securities  or  priorities,  and 
then  only  for  such  excess. 

Upon  application  to  the  Court,  unliquidated  claims  may  be 
liquidated  in  such  manner  as  it  shall  direct,  and  may  afterward  be 
proved  and  allowed. 

DEBTS  WHICH  HAVE  PRIORITY:  The  debts  to  have  priority, 
and  to  be  paid  in  full  out  of  bankrupt  estates,  and  their  order  of 
payment,  are  (1)  the  actual  and  necessary  cost  of  preserving  the 
estate  before  filing  the  petition;  (2)  the  filing  fees  paid  by  cred- 
itors in  involuntary  cases  and  the  reasonable  expenses  of  recovery, 
where  property  of  the  bankrupt,  transferred  or  concealed  by  him 
either  before  or  after  the  filing  of  the  petition,  shall  have  been  re- 
covered for  the  benefit  of  his  estate  by  the  efforts  and  at  the 
expense  of  one  or  more  creditors;  (3)  the  cost  of  administration, 
including  the  fees  and  mileage  payable  to  witnesses  as  now  or 
hereafter  provided  by  the  laws  of  the  United  States,  and  one  rea- 
sonable attorney's  fee,  for  the  professional  services  actually  ren- 
dered, irrespective  of  the  number  of  attorneys  employed,  to  the 
petitioning  creditors  in  involuntary  cases,  to  the  bankrupt  in  in- 
voluntary cases  while  performing  the  duties  herein  prescribed,  and 
to  the  bankrupt  in  voluntary  cases,  as  the  Court  may  allow;  (4) 
wages   due   workmen,   clerks   or   servants  which   have   been    earned 


BANKRUPTCY  47 


within  three  months  before  the  date  of  the  commencement  of  pro- 
ceedings, not  to  exceed  three  hundred  dollars  to  each  claimant; 
and  (5)  debts  owing  to  any  person  who  by  the  laws  of  the  States 
or  the  United  States  is  entitled  to  priority. 

LIENS:  Unless  claims  would  not  have  been  valid  liens  as 
against  the  claims  of  the  creditors  of  the  bankrupt,  they  are  not 
liens  against  his  estate. 

A  lien  created  by  or  obtained  in  or  pursuant  to  any  suit  or 
proceeding  at  law  or  in  equity  (including  an  attachment  or  a  judg- 
ment by  confession),  which  was  begun  against  a  person  within  four 
months  before  the  filing  of  a  petition  in  bankruptcy  by  or  against 
such  person,  shall  be  dissolved  by  the  adjudication,  if  (1)  it  ap- 
pears that  said  lien  was  obtained  and  permitted  while  the  defend- 
ant was  insolvent,  and  that  its  existence  and  enforcement  will  work 
a  preference,  or  (2)  the  party  or  parties  to  be  benefited  by  it  had 
reasonable  cause  to  believe  the  defendant  was  insolvent  and  in 
contemplation  of  bankruptcy,  or  (3)  that  such  lien  was  sought  and 
permitted  in  fraud  of  the  provisions  of  the  Bankruptcy  Act,  or  (4)  if 
the  dissolution  of  such  lien  would  act  against  the  best  interests  of 
the  estate  of  such  person  and  same  should  not  be  dissolved,  but 
the  trustee  shall  be  substituted  to  the  rights  of  the  holder  of  such 
lien  and  empowered  to  perfect  and  enforce  those  rights. 

A  set-off  or  counterclaim  should  not  be  allowed  in  favor  of  any 
debtor  of  the  bankrupt  which  (1)  is  not  provable  against  the  es- 
tate; or  (2)  was  purchased  by  or  transferred  to  him  after  the  fil- 
ing of  the  petition,  or  within  four  months  before  such  filing,  with 
a  view  to  such  use  and  with  knowledge  or  notice  that  such  bank- 
rupt was  insolvent,  or  had  committed  an  act  of  bankruptcy. 

The  decisions  are  that  the  mere  act  of  filing  a  petition  in  bank- 
ruptcy is  notice  to  all  the  world  of  the  fact,  and  automatically 
releases  attachments  and  liens  obtained  through  legal  proceedings. 

ATTACHMENTS  AND  EXEMPTIONS  LEVIED  WITHIN  FOUR 
MONTHS:  All  levies,  judgments,  attachments,  or  other  liens  ob- 
tained through  legal  proceedings  against  a  person  who  is  insol- 
vent, at  any  time  within  four  months  before  the  filing  of  a  peti- 
tion in  bankruptcy  against  him,  are  null  and  void  in  case  he  i3 
adjudged  a  bankrupt,  and  the  property  affected  by  the  levy, 
judgment,  attachment,  or  other  lien,  is  to  be  wholly  discharged  and 
released   from   them,   and   passes   to    the   trustee   as  a   part   of   the 


48  BANKEUPTCY 


estate,  unless  the  Court,  on  due  notice,  shall  order  that  the  right 
under  such  levy,  judgment,  attachment,  or  other  lien  shall  be  pre- 
served for  the  benefit  of  the  estate.  The  court  may  order  such 
conveyance  as  shall  be  necessary  to  carry  these  provisions  into 
effect.  These  provisions  are  not  effective  if  they  have  the  effect 
to  destroy  or  impair  the  title  obtained  by  such  levy,  judgment, 
attachment,  or  other  lien,  of  a  bona  fide  purchaser,  for  value, 
who  shall  have  acquired  it  without  notice  or  reasonable  cause  for 
inquiry. 

PREFERENCES:  It  very  frequently  happens  and  it  is  a  very 
natural  thing,  that  a  person  who  is  in  a  failing  condition,  or  who 
is  in  contemplation  of  bankruptcy,  desires  to  protect  certain  of  his 
creditors  by  paying  them  in  full,  and  transfers  to  them  a  portion 
of  his  property,  either  directly,  or  by  giving  a  mortgage  or  by 
procuring  or  permitting  a  judgment  and  execution  to  be  entered 
and  issued  against  him.  This  constitutes  what  is  known  as  a  pre- 
ference; (1)  if  done  within  four  months  before  bankruptcy,  and 
(2)  if  the  person  receiving  the  property  or  to  be  benefited  by  the 
transfer  is  enabled  to  obtain  a  greater  percentage  of  his  debt  than 
other  creditors  of  the  same  class,  and  (3)  if  the  person  receiving 
the  property  or  to  be  benefitted  by  the  transfer  has  reasonable 
cause  to  believe  that  the  bankrupt  was  insolvent — the  transaction 
can  be  set  aside  by  the  trustee,  and  the  property  recovered  for  the 
benefit  of  the  estate. 

If  a  creditor  has  been  preferred,  and  afterwards  in  good  faith 
gives  the  debtor  further  credit  (without  security  of  any  kind)  for 
property,  which  becomes  a  part  of  the  debtor's  estates, — the 
amount  of  such  new  credit  remaining  unpaid  at  the  time  of  the 
adjudication  may  be  set  off  against  the  amount  which  would 
otherwise  be  recoverable  from  him. 

FRAUDULENT  TRANSFERS:  All  conveyances,  transfers,  as- 
signments, or  encumbrances  of  his  property,  or  any  part  of  them, 
made  or  given  by  a  person  adjudged  a  bankrupt,  and  within  four 
months  before  the  filing  of  the  petition,  with  the  intent  and  pur- 
pose on  his  part  to  hinder,  delay,  or  defraud  his  creditors,  or  any 
of  them,  are  null  and  void  as  against  the  creditors  of  such  debtor 
(except  as  to  purchasers  in  good  faith  and  for  a  present  fair  con- 
sideration). All  property  of  the  debtor  thus  conveyed,  tran&- 
ferred,   assigned,    or   encumbered    (if   he   is   adjudged    a    bankrupt, 


BANKRUPTCY  49 


and  it  is  not  exempt  from  execution  and  liability  for  debts  by  the 
law  of  the  State  in  which  he  resides),  remains  a  part  of  the  assets 
and  estate,  and  passes  to  his  trustee,  whose  duty  it  is  to  recover 
and  reclaim  the  same  by  legal  proceedings  or  otherwise  for  the 
benefit  of  the  creditors.  All  conveyances,  transfers  or  encum- 
brances of  his  property  made  by  a  debtor  at  any  time  within  four 
months  before  the  filing  of  the  petition  against  him,  and  while 
insolvent  (which  are  held  null  and  void  as  against  the  creditors  of 
such  debtor  by  the  laws  of  the  State,  Territory,  or  District,  in 
which  such  property  is  situate),  are  deemed  null  and  void  under 
the  Bankruptcy  Act.  Such  property  passes  to  the  trustee  and 
may  be  by  him  reclaimed  and  recovered  for  the  benefit  of  the 
creditors  of  the  bankrupt. 

The  claims  of  creditors  who  have  received  preferences,  or  to 
whom  conveyances,  transfers,  assignments,  or  incumbrances,  in 
fraud  of  creditors,  have  been  made  or  given,  should  not  be  allowed 
unless  such  creditors  first  surrender  such  preferences,  conveyances, 
transfers,  assignment,  or  incumbrances. 

A  TRUSTEE  is  selected  by  vote  of  the  creditors  at  their  first 
meeting,  by  a  majority  vote  in  number  and  amount.  If  they  fail 
to  do  so,  the  referee  shall  appoint  a  trustee.  Where  the  bankrupt 
has  an  estate  of  some  value,  or  where  the  proceedings  involve  large 
sums,  it  is  customary  for  creditors  to  combine  their  voting  rights, 
so  that  they  may  secure  a  trustee  who  is  favorable  to  them.  The 
power  of  a  trustee  is  so  extensive,  that  it  is  considered  a  great 
advantage  to  have  one  whose  interests  are  favorable  to  those  of 
a  certain  group  of  creditors. 

BONDS  OF  TRUSTEES:  Before  trustees  enter  upon  the  per- 
formance of  their  official  duties  (and  within  ten  days  after  their 
appointment,  or  within  such  further  time,  not  to  exceed  five  days, 
as  the  court  may  permit),  they  must  qualify  by  entering  into  bond 
to  the  United  States,  with  such  sureties  as  shall  be  approved  by 
the  Courts,  conditioned  for  the  faithful  performance  of  their  offi- 
cial duties. 

As  soon  as  he  enters  upon  his  duties,  the  trustee  shall  prepare  a 
complete  inventory  of  all  the  property  of  the  bankrupt  that  comes 
into  his  possession.  The  trustee  shall  make  report  to  the  Court 
(within  twenty  days  after  receiving  the  notice  of  his  appointment) 
of  the  articles  set  off  to  the  bankrupt  by  him,  with  the  estimated 


50  BANKRUPTCY 


ralue  of  each  article.  Any  creditor  may  take  exceptions  to  the 
determination  of  the  trustee  within  twenty  days  after  filing  this 
report. 

DUTIES  OF  TRUSTEES:  Trustees  are  required  to,  (1)  ac- 
count for  and  pay  over  to  the  estates  under  their  control  all  in- 
terest and  money  received  by  them  upon,  or  from  property  of  such 
estates;  (2)  collect  and  reduce  to  money  the  property  of  the  es- 
tates (under  the  direction  of  the  Court),  and  close  up  the  estate 
as  soon  as  is  compatible  with  the  best  interests  of  the  parties  in 
interest;  (3)  deposit  all  money  received  by  them  in  one  of  the 
banks  specially  designated  to  accept  bankrupt  funds;  (4)  dis- 
burse money  only  by  check  or  draft  on  such  depository;  (5)  furn- 
ish such  information  concerning  the  estates  of  which  they  are 
trustees  and  their  administrations  as  may  be  requested  by  parties 
in  interest;  (6)  keep  regular  accounts,  showing  all  amounts  receiv- 
ed and  from  what  sources  and  all  amounts  expended  and  on  what 
accounts;  (7)  lay  before  the  final  meeting  of  the  creditors  de- 
tailed statements  of  the  administration  of  the  estates;  (8)  make 
final  reports  and  file  final  accounts  with  the  Courts  fifteen  days 
before  the  day  fixed  for  the  final  meeting  of  the  creditors;  (9) 
pay  dividends  within  ten  days  after  they  are  declared  by  the  ref- 
erees; (10)  report  to  the  Courts,  in  writing,  the  condition  of  the 
estates  and  the  amounts  of  money  on  hand,  and  such  other  details 
as  may  be  required  by  the  courts,  within  the  first  month  after 
their  appointment  and  every  two  months  afterward,  unless  other- 
wise ordered  by  the  Courts;  (11)  set  apart  the  bankrupt's  exemp- 
tions and  report  the  items  and  estimated  value  of  them  to  the 
Court  as  soon  as  practicable  after  appointment. 

TITLE  TO  PROPERTY:  (a)  The  trustee  upon  his  appoint- 
ment and  qualification,  is  vested  by  operation  of  law  with  the 
title  of  the  bankrupt,  as  of  the  date  he  v/as  adjudged  a  bankrupt 
(except  as  to  exempt  property),  in  all  (1)  documents  relating  to 
his  property;  (2)  interests  in  patents,  patent  rights,  copyrights 
and  trade-marks;  (3)  powers  which  he  might  have  exercised  for 
his  own  benefit,  but  not  those  which  he  might  have  exercised  for 
some  other  person;  (4)  property  transferred  by  him  in  fraud  of 
his  creditors;  (5)  property  which  before  the  filing  of  the  petition 
he  could  by  any  means  have  transferred,  or  which  might  have  been 
levied  upon  and  sold  under  judicial  process  against  him;  and    (6) 


BANKRUPTCY  51 


rights  of  action  arising  upon  contracts  or  from  the  unlawful  tak- 
ing or  detention  of,  or  injury  to,  his  property. 

The  title  to  property  of  a  bankrupt  estate  which  has  been  sold, 
as  described,  shall  be  conveyed  to  the  purchaser  by  the  trustee. 

In  general  it  is  the  duty  of  the  trustee  to  take  charge  of,  and 
conduct  the  administration  of  the  estate  under  the  supervision  of 
the  referee;  He  must  see  that  the  property  is  inventoried  and 
appraised,  and  insured;  He  must  conduct  all  sales  and  pay  all 
dividends  and  be  responsible  for  all  of  the  money  of  the  estate. 

SALES:  He  should  realize  as  much  as  possible  from  the  sale 
of  property  of  bankrupt  estates  and  consequently  nearly  all  sales 
are  made  to  the  highest  bidder,  either  at  public  autcion,  or  pri- 
vately, by  the  trustee.  The  practice  in  Los  Angeles  County  at  this 
time  of  writing  is  substantially  as  follows: 

The  trustee  is  granted  specific  authority  to  sell,  by  the  referee, 
after  a  meeting  of  creditors.  In  the  notice  calling  their  first  meet- 
ing of  creditors,  notice  is  given  by  the  referee  that  he  will  con- 
sider an  application  of  the  trustee  to  be  appointed  to  sell  the 
property  of  the  estate.  This  application  is  usually  made  in  written 
form  at  the  first  meeting  of  creditors  and  granted  by  a  vmtten 
order,  authorizing  the  trustee  to  sell  the  property  at  private  sale 
or  public  auction.  If  the  authorization  is  given  to  sell  at  private 
sale,  the  sale  is  subject  to  the  confirmation  of  the  referee;  and  on 
the  day  of  confirmation  higher  bids  may  be  made;  the  highest  one 
is  approved  by  the  referee  and  the  sale  confirmed,  and  the  trus- 
tee directed  to  deliver  the  property  or  a  transfer  of  it.  A  certi- 
fied copy  of  the  order  of  the  referee  is  usually  looked  upon  as  be- 
ing the  best  evidence  of  a  transfer  of  title. 

SALE  AT  AUCTION:  When  the  sale  is  had  at  public  auction, 
it  is  usually  not  subject  to  the  confirmation  of  the  referee  if  each 
article  is  sold  for  seventy-five  per  cent  of  its  appraised  value. 

SALE  OF  MORTGAGED  PROPERTY:  Where  either  real  estate 
or  personal  property  is  subject  to  a  mortgage  or  lien  of  any  kind, 
the  referee  may  order  it  sold  free  and  clear  of  liens,  if  it  appears 
that  there  is  a  reasonable  equity  in  the  property,  or  if  by  the  sale 
there  can  be  any  benefit  realized  for  the  estate. 

Upon  the  sale  free  and  clear  of  liens  the  amount  of  the  mort- 
gage or  lien  is  paid  by  the  trustee  out  of  the  proceeds  of  the  sale. 
A  sale  of  property  in  the  bankruptcy  court  free  and  clear  of  liens 


52  BANKRUPTCY 


is  the  quickest  way  for  a  lienholder  to  get  his  money  and  is  the 
best  title  in  the  world,  because  it  eliminates  any  time  for  rights 
of  redemption  to  run,  and  is  in  effect  a  decision  by  the  United 
States  District  Court  that  the  title  is  vested  in  the  purchaser. 

SALE  SUBJECT  TO  LIENS:  A  sale  of  property  subject  to 
liens  is  quite  frequently  resorted  to,  especially  where  there  is  only 
a  small  equity  in  the  property.  The  holder  of  the  lien  purchases 
the  title  of  the  bankrupt  saving  expense  of  foreclosure  and  time 
allowed  for  redemption. 

TRANSFERS  VOIDABLE  BY  TRUSTEE:  The  trustee  can  set 
aside  any  transfer  by  the  bankrupt  of  his  property  which  any 
creditor  of  such  bankrupt  might  have  avoided,  and  may  recover  the 
property  so  transferred,  or  its  value,  from  the  person  to  whom  it 
was  transferred,  unless  he  was  a  bona  fide  holder  for  value  before 
the  date  of  the  adjudication.  Such  property  may  be  recovered  or 
its  value  collected  from  whoever  may  have  received  it,  except  a 
bona  fide  holder  for  value. 

RIGHT  OF  TRUSTEE  TO  ENFORCE  LIEN:  Whenever  a 
creditor  is  prevented  from  enforcing  his  rights  as  against  a  lien 
created,  or  attempted  to  be  created,  by  his  debtor  (who  after- 
wards becomes  a  bankrupt),  the  trustee  shall  be  substituted  to 
and  may  enforce  such  rights  of  such  creditor  for  the  benefit  of  the 
estate. 

ACCOUNTS  AND  PAPERS  OF  TRUSTEES:  The  accounts  and 
papers  of  trustees  shall  be  open  to  the  inspection  and  examination 
of  officers,  creditors  and  all  parties  in  interest. 

Within  thirty  days  after  the  adjudication,  the  trustee  shall  file 
a  certified  copy  of  the  decree  of  adjudication  in  the  office  where 
conveyances  of  real  estate  are  recorded,  in  every  county  where 
the  bankrupt  owns  real  estate  not  exempt  from  execution,  and  pay 
the  fee  for  such  filing,  and  he  shall  receive  a  compensation  of 
fifty  cents  for  each  copy  so  filed.  The  filing  fee  and  this  ref- 
eree's fee  shall  be  paid  out  of  the  estate  of  the  bankrupt  as  a  part 
of  costs. 

DEATH  OR  REMOVAL  OF  TRUSTEES:  The  death  or  removal 
of  a  trustee  shall  not  abate  any  suit  or  proceeding  which  he  is 
prosecuting  or  defending  at  the  time  of  his  death  or  removal,  but 
may  be  proceeded  with  or  defended  by  his  joint  trustee  or  suc- 
cessor, in  the  same  manner  as  though  it  had  been  commenced   or 


BANKRUPTCY  53 


was  being  defended   by   such  joint   trustee   alone   or   by   such   suc- 
cessor. 

COMPROMISE:  With  the  approval  of  the  Court,  the  trustee 
may  compromise  any  controversy  arising  in  the  administration  of 
the  estate  upon  such  terms  as  he  may  deem  for  the  best  interests 
of  the  estate. 

EXPENSES  OF  ADMINISTRATING  ESTATES:  The  actual 
and  necessary  expenses  incurred  by  officers  in  the  administration 
of  estates  shall  be  reported  in  detail  under  oath,  and  examined  and 
approved  or  disapproved  by  the  referee.  If  approved,  they  shall  be 
paid  or  allowed  out  of  the  estates  in  which  they  were  incurred. 

DECLARATION  AND  PAYMENT  OF  DIVIDENDS:  Dividends 
of  an  equal  per  cent  are  declared  and  paid  on  all  allowed  claims, 
except  such  as  have  priority  or  are  secured. 

The  first  dividend  should  be  declared  within  thirty  days  after 
the  adjudication,  if  the  money  of  the  estate  in  excess  of  the 
amount  necessary  to  pay  the  debts  which  have  priority  and  such 
claims  as  have  not  been  allowed  (but  probably  will  be),  equals 
five  per  cent  or  more  of  such  allowed  claims.  Dividends,  after 
the  first,  may  be  declared  upon  like  terms  as  the  first,  and  as 
often  as  the  amount  equals  ten  per  cent  or  more,  and  upon  closing 
the  estate.  Dividends  may  be  declared  oftener  and  in  smaller  pro- 
portions if  the  judge  shall  so  order.  The  first  dividend  shall  not 
include  more  than  fifty  per  cent  of  the  money  of  the  estate,  in 
excess  of  the  amount  necessary  to  pay  the  debts  which  have  priority 
and  such  claims  as  probably  will  be  allowed. 

The  final  dividend  shall  not  be  declared  within  three  months 
after  the  first  dividend  is  declared. 

The  rights  of  creditors  who  have  received  dividends  or  in  whose 
favor  final  dividends  have  been  declared,  are  not  affected  by  the 
proof  and  allowance  of  claims  after  the  date  of  such  payment,  or 
declarations  of  dividends;  buc  the  creditors  proving  and  securing 
the  allowance  of  such  claims  are  entitled  to  receive  dividends 
equal  in  amount  to  those  already  received  by  the  other  creditors, 
before  any  further  dividends  are  paid. 

Whenever  a  claim  shall  have  been  reconsidered  and  rejected 
(in  whole  or  in  part),  upon  which  a  dividend  has  been  paid, — the 
trustee  may  recover  from  the  creditor  the  amount  of  the  dividend 


54  BANKRUPTCY 


received  upon  the  claim  if  rejected  in  whole,  or  the  proportional 
part  of  it,  if  rejected  only  in  part. 

RECORDS  OF  REFEREE:  When  the  case  is  concluded,  the 
book  or  books  containing  the  record  of  the  proceedings  is  certified 
by  him,  and  transmitted  to  the  Court  of  Bankruptcy,  together  with 
such  papers  as  are  on  file,  and  there  remain  as  a  part  of  the  rec- 
ords of  the  Court. 

INSPECTION  OF  REFEREE'S  RECORDS:  It  is  the  duty  of 
referee  to  furnish  information  concerning  any  estate  in  process  of 
administration  before  him  as  may  be  requested  by  the  parties  in 
interest,  and  to  allov/  an  inspection  or  examination  of  any  papers 
or  documents  in  his  charge  as  referee. 

DISCHARGE:  At  any  time  after  one  month  after  the  adjudica- 
tion in  bankruptcy,  the  bankrupt  may  be  discharged,  if  he  has 
complied  with  all  orders  of  the  court  in  the  meantime.  His  ap- 
plication must  be  made  within  twelve  months  (which  can  be  ex- 
tended by  the  judge  for  six  months  more,  upon  petition  and  affi- 
davits showing  good  cause  for  such  extension).  If  application  is 
made  later  than  this,  the  court  has  lost  its  jurisdiction,  and  no 
discharge  can  be  made.  The  creditors  then  have  the  right  to  pro- 
ceed to  collect  in  the  State  courts,  as  if  no  bankruptcy  had  oc- 
curred, if  the  statute  of  limitations  has  not  run  against  their 
claims.  The  statute  of  limitations  is  not  suspended  during  bank- 
ruptcy. 

The  hearing  of  this  petition  for  discharge  will  be  in  a  reason- 
able time,  upon  notice  to  all  concerned. 

The  discharge  will  be  granted,  unless  the  bankrupt  has  (1)  cora- 
mitted  an  offense  punishable  by  imprisonment;  (2  destroyed,  re- 
moved or  failed  to  keep  books  of  account  or  records  from  which 
his  financial  condition  can  be  found — all  with  the  intent  to  con- 
ceal his  financial  condition;  (3)  obtained  money  or  property  upon 
a  materially  false  statement  in  writing;  (4)  transferred,  removed, 
destroyed,  or  concealed,  or  permitted  to  be  removed,  concealed,  or 
destroyed,  any  of  his  property,  within  four  months  immediately 
preceding  the  filing  of  the  petition,  and  with  the  intent  to  hinder, 
delay  or  defraud  his  creditors;  (5)  been  granted  a  discharge  in 
voluntary  bankruptcy  within  six  years;  (6)  refused  to  obey  any 
lawful  order  or  answer  any  material  question  approved  by  the 
court,   during  the  proceedings. 


BIGAMY  55 


Discharge  does  not  absolve  a  bankrupt  from  the  payment  of  the 
following  debts:  (1)  Taxes — United  States,  State,  county,  muni- 
cipal or  district;  (2)  liabilities  for  obtaining  money  by  false  pre- 
tense or  false  representations,  or  liabilities  for  wilful  and  malicious 
injuries  to  the  person  or  property  of  another;  (4)  those  debts 
which  have  not  been  scheduled,  unless  the  creditor  had  notice  or 
actual  knowledge  of  the  proceedings;  (5)  debts  which  were  created 
by  the  bankrupt's  fraud,  embezzlement,  misappropriation,  or  de- 
falcation while  acting  as  an   officer,   or  in   any  fiduciary  capacity. 

Discharge  of  a  bankrupt  does  not  release  one  who  is  a  co- 
debtor  with  him,  or  who  is  a  guarantor,  or  a  surety  for  such 
bankrupt. 

REVOKATION  OF  DISCHARGE:  The  discharge  will  be  set 
aside,  if  it  is  made  to  appear  (upon  trial)  that  the  discharge  was 
granted  through  the  fraud  of  the  bankrupt,  and  that  the  knowl- 
edge of  the  fraud  has  come  to  the  attention  of  the  creditors  since 
the  granting  of  the  discharge,  and  that  the  actual  facts  would  not 
warrant  the  discharge. 

Battery:     See  Assault  and  Battery. 

Bicycle:      See  Carrier;  Baggage. 

Bigamy: 

Every  person  having  a  husband  or  v/ife  living,  who  marries  any 
other  person,  except  in  the  cases  specified  in  the  next  section,  is 
guilty  of  bigamy. 

The  last  section  does  not  extend:  (1)  To  any  person  by  reason 
of  any  former  marriage,  whose  husband  or  wife  by  such  marriage 
has  been  absent  for  five  successive  years,  without  being  known  to 
such  person  within  that  time  to  be  living;  nor,  (2)  To  any  person 
by  reason  of  any  former  marriage  which  has  been  pronounced  void, 
annulled,  or  dissolved  by  the  judgment  of  a  competent  court. 

Bigamy  is  punishable  by  a  fine  not  exceeding  five  thousand  dol- 
lars and  by  imprisonment  in  the  state  prison  not  exceeding  ten 
years. 

Every  person  who  knowingly  and  wilfully  marries  the  husband 
or  wife  of  another,  in  any  case  in  which  such  husband  or  wife 
would  be  punishable  under  the  provisions  of  this  chapter,  is  pun- 
ishable by  fine  of  not  less  than  five  thousand  dollars,  or  by  im- 
prisonment in  the  state  prison  not  exceeding  ten  years. 

Bills  and  Notes:     See  Negotiable  Instruments. 


56  BILL  OF  LADING 


Bill  of  Exchange:  See  Negotiable  Instruments,  TI3162,  3199, 
3107,  3210,  3211,  3255. 

Bill  of  Lading  Act  (Uniform):  Passed  by  1919  Legislature,  in 
order  to  make  the  bill  of  lading  laws  similar  in  form  to  those  now 
in  use  in  most  of  the  States.  (See  Negotiable  Instruments;  Ware- 
housemen.) 

2126.  Bills  of  lading  issued  by  any  common  carrier  shall  be 
governed  by  this  article. 

2126a.  Every  bill  must  embody  within  its  written  or  printed 
terms — (a)  The  date  of  its  issue;  (b)  The  name  of  the  person 
from  whom  the  goods  have  been  received;  (c)  The  place  where  the 
goods  have  been  received;  (d)  The  place  to  which  the  goods  are 
to  be  transported;  (e)  A  statement  whether  the  goods  received  will 
be  delivered  to  a  specified  person,  or  to  the  order  of  a  specified 
person;  (f)  A  description  of  the  goods  or  of  the  packages  con- 
taining them,  which  may,  however,  be  in  such  general  terms  as  are 
referred  in  to  section  2128;  and,   (g)   The  signature  of  the  carrier. 

A  negotiable  bill  shall  have  the  words  "order  of"  printed  on  it 
immediately  before  the  name  of  the  person  upon  whose  order  the 
goods  received  are  deliverable. 

A  carrier  shall  be  liable  to  any  person  injured  by  it  for  the 
damage  caused  by  the  omission  from  a  negotiable  bill  of  any  of  the 
provisions  required  in  this  section. 

2126b.  A  carrier  may  insert  in  a  bill,  issued  by  him,  any  other 
terms  and  conditions,  provided  that  such  terms  and  conditons  shall 
not — (a)'  Be  contrary  to  law  or  public  policy,  or  (b)  In  any  wise 
impair  his  obligation  to  exercise  at  least  that  degree  of  care  in  the 
transportation  and  safe-keeping  of  the  goods  entrusted  to  him 
which  a  reasonably  careful  man  would  exercise  in  regard  to  sim- 
ilar goods  of  his  own. 

2126c.  A  bill  in  which  it  is  stated  that  the  goods  are  consigned 
or  destined  to  a  specified  person,  is  a  non-negotiable  or  straight  bill. 

2126d.  A  bill  in  which  it  is  stated  that  the  goods  are  consigned 
or  destined  to  the  order  of  any  person  named  in  such  bill,  is  a 
negotiable  or  order  bill. 

Any  provision  in  such  a  bill  that  it  is  non-negotiable  shall  not 
affect  its  negotiability  within  the  meaning  of  this  article. 

2126e.  Negotiable  bills  issued  in  this  state  for  the  transportation 
of  goods  to   any  place   in   the   United   States  or  the   continent  of 


BILL  OF  LADING  57 


North  America,  except  Alaska,  shall  not  be  issued  in  parts  or  sets. 

If  so  issued,  the  carrier  issuinj?  them  shall  be  liable  for  failure 
to  deliver  the  goods  described  in  them  to  any  one  who  purchases 
a  part  for  value  in  good  faith,  even  though  the  purchase  be  after 
the  delivery  of  the  goods  by  the  carrier  to  a  holder  of  one  of  the 
other  parts. 

2126f.  When  more  than  one  negotiable  bill  is  issued  in  this 
state  for  the  same  goods  to  be  transported  to  any  place  in  the 
United  States  on  the  continent  of  North  America,  except  Alaska, 
the  word  "duplicate"  or  some  other  word  or  words  indicating  that 
the  document  is  not  an  original  bill  shall  be  placed  plainly  upon 
the  face  of  every  such  bill,  except  the  one  first  issued.  A  carrier 
shall  be  liable  for  the  damage  caused  by  his  failure  so  to  do  to  any 
one  who  has  purchased  the  bill  for  value  in  good  faith  as  an  orig- 
inal, even  though  the  purchase  be  after  the  delivery  of  the  goods 
by  the  carrier  to  the  holder  of  the  original  bill. 

2126g.  A  non-negotiable  bill  shall  have  placed  plainly  upon  its 
face  by  the  carrier  issuing  it  "non-negotiable"  or  "not  negotiable." 

This  section  shall  not  apply,  however,  to  memoranda  or  acknowl- 
edgments of  an  informal  character. 

2126h.  The  insertion  in  a  negotiable  bill  of  the  name  of  a  person 
to  be  notified  of  the  arrival  of  the  goods  shall  not  limit  the  ne- 
gotiability of  the  bill,  or  constitute  notice  to  a  purchaser  of  it  of 
any  rights  or  equities  of  such  person  in  the  goods. 

21261.  Except  as  otherwise  provided  in  this  article  where  a 
consignor  receives  a  bill  and  makes  no  objection  to  its  terms  or 
conditions  at  the  time  he  receives  it,  neither  the  consignor  nor  any 
person  who  accepts  delivery  of  the  goods,  nor  any  person  who  seeks 
to  enforce  any  provision  of  the  bill,  shall  be  allowed  to  deny  that 
he  is  bound  by  such  terms  and  conditions,  so  far  as  they  are  not 
contrary  to  law  or  public  policy. 

2127.  A  carrier,  in  the  absence  of  some  lawful  excuse,  is  bound 
to  deliver  goods  upon  a  demand  made  either  by  the  consignee 
named  in  the  bill  for  the  goods,  or  if  the  bill  is  negotiable,  by  the 
holder  of  it,  if  such  demand  is  accompanied  by — (a)  An  offer  in 
good  faith  to  satisfy  the  carrier's  lawful  lien  upon  the  goods;  (b) 
An  offer  in  good  faith  to  surrender,  properly  indorsed,  the  bill  which 
was  issued  for  the  goods  if  the  bill  is  negotiable;  and,  (c)  A  readi- 
ness  and   willingness    to    sign,    when    the   goods    are    delivered,    an 


58  BILL  OF  LADING 


acknowledgment  that  they  have   been   delivered,   if   such   signature 
is  requested  by  the  carrier. 

In  case  the  carrier  refuses  or  fails  to  deliver  the  goods  in  com- 
pliance with  a  demand  by  the  consignee  or  holder  so  accompanied, 
the  burden  shall  be  upon  the  carrier  to  establish  the  existence  of 
a  lawful  excuse  for  such  refusal  or  failure, 

2127a.  A  carrier  is  justified,  subject  to  the  provisions  of  the 
three  following  sections,  in  delivering  goods  to  one  who  is — (a)  A 
person  lawfully  entitled  to  the  possession  of  the  goods,  or  (b)  The 
consignee  named  in  a  non-negotiable  bill  for  the  goods,  or  (c)  A 
person  in  possession  of  a  negotiable  bill  for  the  goods  by  the  terms 
of  which  the  goods  are  deliverable  to  his  order,  or  which  has  been 
indorsed  to  him  or  in  blank  by  the  consignee  or  by  the  mediate 
or  immediate  indorsee  of  the  consignee. 

2127b.  Where  a  carrier  delivers  goods  to  one  who  is  not  law- 
fully entitled  to  the  possession  of  them,  the  carrier  shall  be  liable 
to  anyone  having  a  right  of  property  or  possession  in  the  goods  if 
he  delivered  the  goods  otherwise  than  as  authorized  by  subdivisions 
(b)  and  (c)  of  the  preceding  section;  and,  though  he  delivered 
the  goods  as  authorized  by  either  of  said  subdivisons,  he  shall  be  so 
liable  if  prior  to  such  delivery  he — (a)  Had  been  requested,  by  or 
on  behalf  of  a  person  having  a  right  of  property  or  possession  in 
the  goods,  not  to  make  such  delivery,  or  (b)  Had  information  at 
the  time  of  the  delivery  that  it  was  to  a  person  not  lawfully  en- 
titled to  the  possession  of  the  goods.  A  request  or  information  to 
be  effective  within  the  meaning  of  this  section  must  be  given  to  an 
officer  or  agent  of  the  carrier,  the  actual  or  apparent  scope  of 
whose  duties  includes  action  upon  such  a  request  or  information, 
and  must  be  given  in  time  to  enable  the  officer  or  agent  to  whom 
it  is  given,  acting  with  reasonable  diligence,  to  stop  delivery  of 
the  goods. 

2127c.  Except  as  provided  in  section  2128k,  and  except  when 
compelled  by  legal  process,  if  a  carrier  delivers  goods  for  which  a 
negotiable  bill  had  been  issued,  the  negotiation  of  which  would 
transfer  the  right  to  the  possession  of  the  goods,  and  fails  to  take 
up  and  cancel  the  bill,  such  carrier  shall  be  liable  for  failure  to 
deliver  the  goods  to  anyone  who  for  value  and  in  good  faith  pur- 
chases such  bill,  whether  such  purchaser  acquired  title  to   the   bill 


BILL  OF  LADING  59 


before  or  after  the  delivery  of  the  goods  by  the  carrier,  and  not- 
withstanding delivery  was  made  to  the  person  entitled  to  it. 

2127d.  Except  as  provided  in  section  2128k,  and  except  when 
compelled  by  legal  process,  if  a  carrier  delivers  part  of  the  goods 
for  which  a  negotiable  bill  had  been  issued  and  fails  either — (a) 
To  take  up  and  cancel  the  bill,  or  (b)  To  place  plainly  upon  it  a 
statement  that  a  portion  of  the  goods  had  been  delivered,  with  a 
description,  which  may  be  in  general  terms,  either  of  the  goods 
or  packages  that  have  been  so  delivered  or  of  the  goods  or  pack- 
ages which  still  remain  in  the  carrier's  possession,  he  shall  be 
liable  for  failure  to  deliver  all  the  goods  specified  in  the  bill,  to 
any  one  who  for  value  and  in  good  faith  purchases  it,  whether 
such  purchaser  acquired  title  to  it  before  or  after  the  delivery  of 
any  portion  of  the  goods  by  the  carrier,  and  notwithstanding  such 
delivery  was  made  to  the  person  entitled  to  it. 

2128.  Any  alteration,  addition  or  erasure  in  a  bill  after  its 
issue  without  authority  from  the  carrier  issuing  the  same  either  in 
writing  or  noted  on  the  bill  shall  be  void,  whatever  be  the  nature 
and  purpose  of  the  change,  and  the  bill  shall  be  enforceable  ac- 
cording  to    its   original   tenor. 

2128a.  Where  a  negotiable  bill  has  been  lost  or  destroyed,  a 
court  of  competent  jurisdiction  may  order  the  delivery  of  the 
goods  upon  satisfactory  proof  of  such  loss  or  destruction  and  upon 
the  giving  of  a  bond  with  sufficient  surety  to  be  approved  by  the 
court  to  protect  the  carrier  or  any  person  injured  by  such  delivery 
from  any  liability  or  loss,  incurred  by  reason  of  the  original  bill 
remaining  outstanding.  The  court  may  also  in  its  discretion  order 
the  payment  of  the  carrier's  reasonable  costs  and  counsel  fees. 
The  delivery  of  the  goods  under  an  order  of  the  court  as  pro- 
vided in  this  section,  shall  not  relieve  the  carrier  from  liability  to 
a  person  to  whom  the  negotiable  bill  has  been  or  shall  be  negoti- 
ated for  value  without  notice  of  the  proceedings  or  of  the  delivery 
of  the  goods. 

2128b.  A  bill  upon  the  face  of  which  the  word  "duplicate"  or 
some  other  word  or  words  indicating  that  the  document  is  not  an 
original  bill  is  placed  plainly  shall  impose  upon  the  carrier  issuing 
the  same  the  liability  of  one  who  represents  and  warrants  that 
such  bill  is  an  accurate  copy  of  an  original  bill  properly  issued, 
but  no  other  liability. 


60  BILL  OF  LADING 


2128c.  No  title  to  proods  or  right  to  their  possession,  asserted 
by  a  carrier  for  his  own  benefit,  shall  excuse  him  from  liability  for 
refusing  to  deliver  the  goods,  according  to  the  terms  of  a  bill  is- 
sued for  them,  unless  such  title  or  right  is  derived  directly  or  in- 
directly from  a  transfer  made  by  the  consignor  or  consignee  after 
the  shipment,  or  from  the  carrier's  Hen. 

2128d.  If  more  than  one  person  claims  the  title  or  possession 
of  the  goods,  the  carrier  may  require  all  known  claimants  to  inter- 
plead, either  as  a  defense  to  an  action  brought  against  him  for 
non-delivery  of  the  goods,  or  as  an  original  suit,  whichever  is 
appropriate. 

2128e.  If  someone  other  than  the  consignee  or  person  in  pos- 
session of  the  bill,  has  a  claim  to  the  title  or  possession  of  the 
goods,  and  the  carrier  has  information  of  such  claim,  the  carrier 
shall  be  excused  from  liability  for  refusing  to  deliver  the  goods 
either  to  the  consignee  or  person  in  possesion  of  the  bill,  or  to  the 
adverse  claimant,  until  the  carrier  has  had  a  reasonable  time  to 
ascertain  the  validity  of  the  adverse  claim  or  to  bring  legal  pro- 
ceedings to  compel  all  claimants  to  interplead. 

2128f.  Except  as  provided  in  the  two  preceding  sections  and 
in  section  2127a,  no  right  or  title  of  a  third  person,  unless  en- 
forced by  legal  process,  shall  be  a  defense  to  an  action  brought  by 
the  consignee  of  a  non-negotiable  bill  or  by  the  holder  of  a  negoti- 
able bill  against  the  carrier  for  failure  to  deliver  the  goods  on 
demand. 

2128g.  If  a  bill  of  lading  has  been  issued  by  a  carrier  or  on 
his  behalf  by  an  agent  or  employee  the  scope  of  whose  actual  or 
apparent  authority  includes  the  issuing  of  bills  of  lading,  the  car- 
rier shall  be  liable  to — (a)  The  consignee  named  in  a  non-negoti- 
able bill,  or  (b)  The  holder  of  a  negotiable  bill,  who  has  given 
value  in  good  faith  relying  upon  the  description  therein  of  the 
goods,  for  damages  caused  by  the  non-receipt  by  the  carrier  or  a 
connecting  carrier  of  all  or  part  of  the  goods  or  their  failure  to 
correspond  with  the  description  thereof  in  the  bill  at  the  time  of 
its  issue.  If,  however,  the  goods  are  described  in  a  bill  merely  by 
a  statement  of  marks  or  labels  upon  them  or  upon  packages  con- 
taining them,  or  by  a  statement  that  the  goods  are  said  to  be 
goods  of  a  certain  kind  or  quantity  or  in  a  certain  condition,  or  it 
is  stated  in  the  bill  that  packages  are  said  to   contain  goods  of  a 


BILL  OF  LADING  fll 


certain  kind  or  quantity,  or  in  a  certain  condition,  or  that  the  con- 
tents or  condition  of  the  packacres  are  unknown,  or  words  of  like 
purport  are  contained  in  the  bill,  such  statements,  if  true,  shall  not 
make  liable  the  carrier  issuing:  the  bill,  althouprh  the  goods  are  not 
of  the  kind  or  quantity  or  in  the  condition  which  the  marks  or 
labels  upon  them  indicate,  or  of  the  kind  or  quantity  or  in  the  con- 
dition they  were  said  to  be  by  the  consignor.  All  carriers  must 
issue  to  shippers  of  carload  freight  from  agency  stations  a  clean 
bill  of  lading  at  the  request  of  the  shipper  and  in  such  cases  shall 
discontinue  the  practice  of  noting  on  bill  of  lading  "Shipper's  load 
and  count."  Upon  request  of  shipper  of  carload  freight  from  a 
non-agency  station,  the  carrier  shall  send  a  man  to  check  the  load- 
ing and  shall  issue  a  clean  bill  of  lading,  the  expense,  except  trans- 
portation of  man  to  and  from  point  of  loading  to  perform  service 
of  checking,  to  be  borne  by  the  shipper. 

2128h.  If  goods  are  delivered  to  a  carrier  by  the  owner  or  by 
a  person  whose  act  in  conveying  the  title  to  them  to  a  purchaser 
for  value  in  good  faith  would  bind  the  owner  and  negotiable  bill 
is  issued  for  them,  they  cannot  thereafter,  while  in  the  possession 
of  the  carrier,  be  attached  by  garnishment  or  otherwise,  or  be 
levied  upon  under  an  execution,  unless  the  bill  be  first  surrendered 
to  the  carrier  or  its  negotiation  enjoined.  The  carrier  shall  in  no 
such  case  be  compelled  to  deliver  the  actual  possession  of  the 
goods  until  the  bill  is  surrendered  to  him  or  impounded  by  the 
court. 

21281.  A  creditor  whose  debtor  is  the  owner  of  a  negotiable 
bill  shall  be  entitled  to  such  aid  from  courts  of  appropriate  juris- 
diction by  injunction  and  otherwise  in  attaching  such  bill,  or  in 
satisfying  the  claim  by  means  of  it  as  is  allowed  at  law  or  in  equity 
in  regard  to  property  which  cannot  readily  be  attached  or  levied 
upon  by  ordinary  legal  process. 

2128J.  If  a  negotiable  bill  is  issued  the  carrier  shall  have  no 
lien  on  the  goods  therein  mentioned,  except  for  charges  on  those 
goods  for  freight,  storage,  demurrage  and  terminal  charges,  and 
expenses  necessary  for  the  preservation  of  the  goods  or  incident 
to  their  transportation  subsequent  to  the  date  of  the  bill,  unless  the 
bill  expressly  enumerates  other  charges  for  which  a  lien  is  claimed. 
In  such  case  there  shall  also  be  a  lien  for  the  charges  enumerated 


62  BILL  OF  LADING 


80  far  as  they  are  allowed  by  law  and  the  contract  between  the 
consignor  and  the  carrier. 

2128k.  After  goods  have  been  lawfully  sold  to  satisfy  a  car- 
rier's lien,  or  because  they  have  not  been  claimed,  or  because  they 
are  perishable  or  hazardous,  the  carrier  shall  not  thereafter  be 
liable  for  failure  to  deliver  the  goods  to  the  consignee  or  owner  of 
the  goods,  or  to  a  holder  of  the  bill  given  for  the  goods  when  they 
are  shipped,  even  if  such  a  bill  be  negotiable. 

2129.  A  negotiable  bill  may  be  negotiated  by  delivery  where, 
by  the  terms  of  the  bill,  the  carrier  undertakes  to  deliver  the  goods 
to  the  order  of  a  specified  person,  and  such  person  or  a  subsequent 
indorsee  of  the  bill  has  indorsed  it  in  blank. 

2129a.  A  negotiable  bill  may  be  negotiated  by  the  indorsement 
of  the  person  to  whose  order  the  goods  are  deliverable  by  the  tenor 
of  the  bill.  Such  indorsement  may  be  in  blank  or  to  a  specified 
person.  If  indorsed  to  a  specified  person,  it  may  be  negotiated 
again  by  the  indorsement  of  such  person  in  blank  or  to  another 
specified  person.  Subsequent  negotiation  may  be  made  in  like 
manner. 

2129b.  A  bill  may  be  transferred  by  the  holder  by  delivery, 
accompanied  with  an  agreement,  express  or  implied,  to  transfer  the 
title  to  the  bill  or  to  the  goods  represented  by  it. 

A  non-negotiable  bill  cannot  be  negotiated,  and  the  indorsement 
of  such  a  bill  gives  the   transferee   no  additional   right. 

2129c.  A  negotiable  bill  may  be  negotiated  by  any  person  in 
possession  of  it  (however  such  possession  may  have  been  acquired) 
if,  by  the  terms  of  the  bill,  the  carrier  undertakes  to  deliver  the 
goods  to  the  order  of  such  person,  or  if  at  the  time  of  negotiation 
the  bill  is  in  form  that  it  may  be  negotiated  by  delivery. 

2129d.  A  person  to  whom  a  negotiable  bill  has  been  duly  ne- 
gotiated requires  by  it — (a)  Such  title  to  the  goods  as  the  person 
negotiating  the  bill  to  him  had  or  had  ability  to  convey  to  a  pur- 
chaser in  good  faith  for  value,  and  also  such  title  to  the  goods 
as  the  consignee  and  consignor  had  or  had  power  to  convey  to  a 
purchaser  in  good  faith  for  value,  and  (b)  The  direct  obligation  of 
the  carrier  to  hold  possession  of  the  goods  for  him  according  to 
the  terms  of  the  bill  as  fully  as  if  the  carrier  had  contracted  di- 
rectly with  him. 


BILL  OB^  LADING  63 


2129e.  A  person  to  whom  a  bill  has  been  transferred  but  not 
negotiated  acquires  by  it  as  against  the  transferor,  the  title  to  the 
goods,  subject  to  the  terms  of  any  agreement  with  the  transferor. 
If  the  bill  is  non-negotiable,  such  person  also  acquires  the  right  to 
notify  the  carrier  of  the  transfer  to  him  of  such  bill,  and  thereby 
to  become  the  direct  obligee  of  whatever  obligations  the  carrier 
owed  to  the  transferor  of  the  bill  immediately  before  the  noti- 
fication. 

Before  the  notification  of  the  carrier  by  the  transferor  or  trans- 
feree of  a  non-negotiable  bill,  the  title  of  the  transferee  to  the 
goods  and  the  right  to  acquire  the  obligation  of  the  carrier  may  be 
defeated  by  garnishment  or  by  attachment  or  execution  upon  the 
goods  by  a  creditor  of  the  transferor,  or  by  a  notification  to  the 
carrier  by  the  transferor  or  a  subsequent  purchaser  from  the  trans- 
feror of  a  subsequent  sale  of  the  goods  by  the  transferor. 

A  carrier  has  not  received  notification  within  the  meaning  of  this 
section  unless  an  officer  or  agent  of  the  carrier,  the  actual  or  ap- 
parent scope  of  whose  duties  includes  action  upon  such  a  notifica- 
tion, has  been  notified,  and  no  notification  shall  be  effective  until 
the  officer  or  agent  to  whom  it  is  given  has  had  time,  with  the  exer- 
cise of  reasonable  diligence,  to  communicate  with  the  agent  or 
agents  having  actual  possession  or  control  of  the  goods. 

2129f.  Where  a  negotiable  bill  is  transferred  for  value  by  de- 
livery, and  the  indorsement  of  the  transferor  is  essential  for  nego- 
tiation, the  transferee  acquires  a  right  against  the  transferor  to 
compel  him  to  indorse  the  bill,  unless  a  contrary  intention  appears. 
The  negotiation  shall  take  effect  as  of  the  time  when  the  indorse- 
ment is  actually  made.    This  obligation  may  be  specifically  enforced. 

2129g.  A  person  who  negotiates  or  transfers  for  value  a  bill  by 
indorsement  or  delivery,  including  one  who  assigns  for  value  a 
claim  secured  by  a  bill,  unless  a  contrary  intention  appears,  war- 
rants—  (a)  That  a  bill  is  genuine;  (b)  That  he  has  a  legal  right  to 
transfer  it;  (c)  That  he  has  knowledge  of  no  fact  which  would  im- 
pair the  validity  or  worth  of  the  bill;  and,  (d)  That  he  has  a  right 
to  transfer  the  title  of  the  goods,  and  that  the  goods  are  merchant- 
able or  for  a  particular  purpose  whenever  such  warranties  would 
have  been  implied,  if  the  contract  of  the  parties  had  been  to  trans- 
fer without  a  bill  the  goods  represented  thereby.     In  the  case  of  an 


64  BILL  OF  LADING 


assijrnment  of  a  claim  secured  by  a  bill,  the  liability  of  the  as- 
signor shall  not  exceed  the  amount  of  the  claim. 

2130.  The  indorsement  of  a  bill  shall  not  make  the  indorser 
liable  for  any  failure  on  the  part  of  the  carrier  or  previous  in- 
dorsers  of  the  bill  to  fulfill  their  respective  obligations. 

21.30a.  A  mortgagee  or  pledgee,  or  other  holder  of  a  bill  for 
security  who  in  good  faith  demands  or  receives  payment  of  the  debt 
for  which  such  bill  is  security,  whether  from  a  party  to  a  draft 
drawn  for  such  debt  or  from  any  other  person,  shall  not  be  deemed 
by  so  doing  to  represent  or  to  warrant  the  genuineness  of  such  bill 
or  the  quantity  or  quality  of  the  goods  therein  described. 

2130b.  The  validity  of  the  negotiation  of  a  bill  is  not  impaired 
by  the  fact  that  such  negotiation  was  a  breach  of  duty  on  the  part 
of  the  person  making  the  negotiation,  or  by  the  fact  that  the  owner 
of  the  bill  was  deprived  of  the  possession  of  the  same  by  fraud, 
accident,  mistake,  duress  or  conversion,  if  the  person  to  whom  the 
bill  was  negotiated,  or  a  person  to  whom  the  bill  was  subsequently 
negotiated,  gave  value  for  it,  in  good  faith,  without  notice  of  the 
breach  of  duty,  or  fraud,  accident,  mistake,  duress  or  conversion. 

2130c.  Where  a  person  having  sold,  mortgaged,  or  pledged 
goods  which  are  in  the  carrier's  possession  and  for  which  a  negoti- 
able bill  has  been  issued,  or  having  sold,  mortgaged,  or  pledged 
the  negotiable  bill  representing  such  goods,  continues  in  possession 
of  the  negotiable  bill,  the  subsequent  negotiation  of  it  by  that  per- 
son under  any  sale,  pledge,  or  other  disposition  of  it  to  any  person 
receiving  the  same  in  good  faith,  for  value  and  without  notice  of 
the  previous  sale,  shall  have  the  same  effect  as  if  the  first  pur- 
chaser of  the  goods  or  bill  had  expressly  authorized  the  subsequent 
negotiation. 

2130d.  Where  goods  are  shipped  by  the  consignor  in  accord- 
ance with  a  contract  or  order  for  their  purchase,  the  form  in  which 
the  bill  is  taken  by  the  consignor  shall  indicate  the  transfer  or  re- 
tention of  the  property  or  right  to  the  possession  of  the  goods  as 
follows:  (a)  Where  by  the  bill  the  goods  are  deliverable  to  the 
buyer  or  to  his  agent,  or  to  the  order  of  the  buyer  or  of  his  agent, 
the  consignor  thereby  transfers  the  property  in  the  goods  to  the 
buyer.  (b)  Where  by  the  bill  the  goods  are  deliverable  to  the 
seller  or  to  his  agent,  or  to  the  order  of  the  seller  or  of  his  agent, 
the  seller  thereby  reserves  the  property  in  the  goods.     But  if,  ex- 


BILL  OF  IjADING  05 


cept  for  the  form  of  the  bill,  the  property  would  have  passed  to 
the  buyer  on  shipment  of  the  goods,  the  seller's  property  in  the 
goods  shall  be  deemed  to  be  only  for  the  purpose  of  securing  per- 
formance by  the  buyer  of  his  obligations  under  the  contract,  (c) 
Where  by  the  bill  the  goods  are  deliverable  to  the  order  of  the 
buyer  or  of  his  agent,  but  possession  of  the  bill  is  retained  by  the 
seller  or  his  agent,  the  seller  thereby  reserves  a  right  to  the  pos- 
session of  the  goods,  as  against  the  buyer,  (d)  Where  the  seller 
dravvs  on  the  buyer  for  the  price  and  transmits  the  draft  and  bill 
together  to  the  buyer  to  secure  acceptance  or  payment  of  the  draft, 
the  buyer  is  bound  to  return  the  bill  if  he  does  not  honor  the 
draft,  and  if  he  wrongfully  retains  the  bill  he  acquires  no  added 
right  thereby.  If,  however,  the  bill  provides  that  the  goods  are 
deliverable  to  the  buyer,  or  to  the  order  of  the  buyer,  or  is  en- 
dorsed in  blank  or  to  the  buyer  by  the  consignee  named  thereon, 
one  who  purchases  in  good  faith,  for  value,  the  bill  or  goods  from 
the  buyer,  shall  obtain  the  title  to  the  goods,  although  the  draft 
has  not  been  honored,  if  such  purchaser  has  received  delivery  of 
the  bill  indorsed  by  the  consignee  named  in  it,  or  of  the  goods, 
without  notice  of  the  facts  making  the  transfer  wrongful. 

2130e.  Where  the  seller  of  goods  draws  on  the  buyer  for  the 
price  of  the  goods  and  transmits  the  draft  and  bill  of  lading  for 
the  goods  either  directly  to  the  buyer  or  through  a  bank  or  other 
agency,  unless  a  different  intention  on  the  part  of  the  seller  ap- 
pears, the  buyer  and  all  other  parties  interested  shall  be  justified 
in  assuming:  (a)  If  the  draft  is  by  iti^  terms  or  legal  effect  pay- 
able on  demand  or  presentation  or  at  sight,  or  not  more  than  three 
days  thereafter  (whether  such  three  days  be  termed  days  of  grace 
or  not),  that  the  seller  intended  to  require  payment  of  the  draft 
before  the  buyer  should  be  entitled  to  receive  or  retain  the  bill; 
(b)  If  the  draft  is  by  its  terms  payable  on  time,  extending  beyond 
three  days  after  demand,  presentation  or  sight  (whether  such  three 
days  be  termed  days  of  grace  or  not),  that  the  seller  intended  to 
require  acceptance,  but  not  payment,  of  the  draft  before  the  buyer 
should  be  entitled  to  receive  or  retain  the  bill.  The  provisions  of 
this  section  are  applicable  whether  by  the  terms  of  the  bill  the 
goods  are  consigned  to  the  seller,  or  to  his  order,  or  to  the  buyer, 
or  to  his  order,  or  to  a  third  person,  or  to  his  order. 

2}.30f.     Where  a  negotiable  bill  has  issued  for  goods,  no  seller's 


66  BILL  OF  LADING 


lien  or  right  of  stoppaj^e  in  transitu  shall  defeat  the  rights  of  any 
purchaser  for  vakie  in  good  faith  to  whom  such  bill  has  been  nego- 
tiated, whether  such  negotiation  be  prior  or  subsequent  to  the  noti- 
fication to  the  carrier  who  issued  such  bill  of  the  seller's  claim  to 
a  lien  or  right  of  stoppage  in  transitu.  Nor  shall  the  carrier  be 
obliged  to  deliver  or  juf-tified  in  delivering  the  goods  to  an  unpaid 
seller  unless  such  bill  is  first  surrendered  for  cancellation. 

2130g.  Except  as  provided  in  section  2130f,  nothing  in  this 
article  shall  limit  the  rights  and  remedies  of  a  mortgagee  or  lien- 
holder  whose  mortgage  or  lien  on  goods  would  be  valid,  apart  from 
this  article,  as  against  one  who  for  value  and  in  good  faith  pur- 
chased from  the  owner,  immediately  before  the  time  of  their  de- 
liverj'-  to  the  carrier,  the  goods  v/hich  are  subject  to  the  mortgage 
or  lien  and  obtained  possession  of  them. 

2131.  Any  officer,  agent,  or  servant  of  a  carrier  who,  with  in- 
tent to  defraud,  issues  or  aids  in  issuing  a  bill  knowing  that  all 
or  any  part  of  the  goods  for  which  such  bill  is  issued  have  not 
been  received  by  such  carrier,  or  by  an  agent  of  such  carrier  or 
by  a  connecting  carrier,  or  are  not  under  the  carrier's  control  at 
the  time  of  issuing  such  bill,  shall  be  guilty  of  a  crime,  and  upon 
conviction  shall  be  punished  for  each  offense  by  imprisonment  not 
exceeding  five  years,  or  by  a  fine  not  exceeding  five  thousand 
dollars,  or  by  both. 

2131a.  Any  officer,  agent,  or  servant  of  a  carrier  who,  with 
intent  to  defraud,  issues  or  aids  in  issuing  a  bill  for  goods,  know- 
ing that  it  contains  any  false  statement,  shall  be  guilty  of  a  crime, 
and  upon  conviction  shall  be  punished  for  each  off'ense  by  imprison- 
ment not  exceeding  one  year,  or  by  a  fine  not  exceeding  one 
thousand  dollars,  or  by  both. 

2131b.  Any  officer,  agent,  or  servant  of  a  carrier  who,  with  in- 
tent to  defraud,  issues  or  aids  in  issuing  a  duplicate  or  additional 
bill  for  goods  in  violation  of  the  provisions  of  secton  2126f,  know- 
ing that  a  former  negotiable  bill  for  the  same  goods  or  any  part  of 
them  is  outstanding  and  uncancelled,  shall  be  guilty  of  a  crime,  and 
upon  conviction  shall  be  punished  for  each  offense  by  imprisonment 
not  exceeding  five  years,  or  by  a  fine  not  exceeding  five  thousand 
dollars,  or  by  both. 

2131c.  Any  person  who  ships  goods  to  which  he  has  not  title,  or 
upon  which  there   is  a  lien   or  mortgage,   and  who   takes  for  such 


BLUE  SKY  LAW  67 


goods  a  negotiable  bill  which  he  afterward  negotiates  for  value 
with  intent  to  deceive  and  without  disclosing  his  want  of  title  or 
the  existence  of  the  lien  or  mortgage,  shall  be  guilty  of  a  crime, 
and  upon  conviction  shall  be  punished  for  each  offense  by  impris- 
onment not  exceeding  one  year,  or  by  a  fine  not  exceeding  one 
thousand  dollars,  or  by  both. 

2131  d.  Any  person  who,  with  intent  to  deceive,  negotiates  or 
transfers  for  value  a  bill  knowing  that  any  or  all  of  the  goods 
which  by  the  terms  of  such  bill  appear  to  have  been  received  for 
transportation  by  the  carrier  which  issued  the  bill,  are  not  in  the 
possession  or  control  of  such  carrier,  or  of  a  connecting  carrier, 
without  disclosing  this  fact,  shall  be  guilty  of  a  crime,  and  upon 
conviction  shall  be  punished  for  each  offense  by  imprisonment  not 
exceeding  five  years,  or  by  a  fine  not  exceeding  five  thousand  dol- 
lars, or  by  both. 

2131f.  Any  person  who,  with  intent  to  defraud,  issues  or  aids  in 
issuing  a  non-negotiable  bill  without  the  words  "not  negotiable" 
placed  plainly  upon  the  face  of  it,  shall  be  guilty  of  a  crime,  and 
upon  conviction  shall  be  punished  for  each  offense  by  imprison- 
ment not  exceeding  five  years,  or  by  a  fine  not  exceeding  fire 
thousand  dollars,  or  by  both. 

2182.  In  any  case  not  provided  for  in  this  article,  the  rules  of 
law  and  equity  including  the  law  merchant,  and  in  particular  the 
rules  relating  to  the  law  of  principal  and  agent,  executors,  admin- 
istrators and  trustees,  and  to  the  effect  of  fraud,  misrepresentation, 
duress  or  coercion,  accident,  mistake,  bankruptcy,  or  other  inval- 
idating cause,  shall  govern. 

2132a.  This  article  shall  be  so  interpreted  and  construed  as  to 
effectuate  its  general  purpose  to  make  uniform  the  law  of  those 
states  which  enact  it. 

Bill  of  Particulars:      See  Actions. 

Bill  of  Sale  is  an  instrument  by  which  the  title  is  passed  to  Per- 
sonal Property,  although  one  is  not  necessary  if  the  price  is  paid 
and  the  property  at  once  delivered.  (See  Sales;  Title;  Transfer; 
Personal  Property.) 

Bills  in  a  Set:  See  Negotiable  Instruments,  113259;  Bill  of  Lad- 
ing,  2126e. 

Blue  Sky  Law:     See  Corporations;  Monopoly. 


68  BLUE  SKY  LAW 


No  company  (meaninj^  domestic  and  foreign  corporations,  associa- 
tions, joint  stock  companies,  partnerships  and  trustees,  except  cor- 
porations subject  to  the  Banking:,  public  utility,  insurance,  or  building 
and  loan  laws)  shall  sell,  offer  for  sale,  negotiate  for  the  sale  of,  or 
take  subscriptions  for,  any  security  of  its  own  issue  until  it  shall 
have  first  applied  for  and  secured  from  the  Commissioner  of  Cor- 
porations a  permit  so  to  do. 

In  the  application  there  must  be  stated  the  names  and  addresses  of 
its  officers,  the  location  of  its  ofFico,  an  itemi^^cd  account  of  its  finan- 
cial condition,  the  amount  and  character  of  its  assets  and  liabilities,  a 
detailed  statement  of  the  plan  on  which  it  proposes  to  transact 
business,  a  copy  of  any  security  it  proposes  to  issue,  and  any  con- 
tract, prospectus  or  advertisement  it  proposes  to  make  or  publish, 
with  such  additional  information  which  the  Commissioner  may 
require,  either  then  or  from  time  to  time. 

Corporations  must  also  file  a  copy  of  the  minutes,  of  the  articles 
of  incorporation,  and  of  the  by-laws.  No  person  or  company  shall 
act  as  an  agent  or  broker  until  the  Commissioner  shall  issue  a  cer- 
tificate authorizing  this.  An  application  must  be  made,  giving  the 
name  and  address  of  the  applicant,  and  a  statement  of  facts  show- 
ing that  he  has  a  good  business  reputation. 

No  advertisement  shall  be  published  concerning  any  security  to 
be  issued  by  any  company  until  the  Commissioner  shall  issue  a 
permit  authorizing  the  sale  of  such  security,  nor  shall  any  such 
advertisement  be  published  unless  a  copy  of  it  is  sent  to  the  Com- 
missioner and  if  he  notifies  the  party  in  writing  that,  in  his  opinion, 
the  advertisement  contains  a  statement  which  is  false  or  misleading, 
it  must  not  be  published. 

From  time  to  time  these  companies  or  brokers,  if  required  by  the 
Commissioner  must  make  and  fi.le  reports  showing  their  sales  and 
financial  condition.  All  these  papers,  etc.,  are  open  to  public  inspec- 
tion, unless  the  Commissioner  in  his  discretion  desires  to  withhold 
them.  *■ 

Securities  issued  without  permits  are  invalid,  and  the  company  is- 
suing them  is  punishable  by  a  fine  not  exceeding  $1000;  while  any 
person  knowingly  violating  any  portion  of  this  law  may  be  punished 
by  imprisonment  not  exceeding  five  years  in  states  prison,  or  two 
years  in  the  county  jail,  or  a  fine  not  exceeding  $5000,  or  both  fine 
and  imprisonment. 


BOTTOMRY  69 


For  filing  these  various  papers  the  Commissioner  collects  various 
fees,  beginning  at  $10,  plus  1-20  of  1  per  cent.,  for  securities  to  an 
amount  between  $20,000  and  $50,000  intended  to  be  issued;  for 
filing  an  application  for  brokers'  certificate  $5.00,  for  agent  $1.00, 
also  $10.00  per  day  and  expenses  for  any  investigation  or  examina- 
tions, etc. 

Boarding   House:      See   Inn;   Hotel;  Liens. 

Bond:     See  Limitations, 

Bottomry:      See    Insurance;    Contracts;    Ships;   Freight;    Wrecks. 

1.  Bottomry  is  a  contract  by  which  a  ship  or  its  freightage  is 
hypothecated  as  security  for  a  loan,  which  is  to  be  repaid  only  in 
case  the  ship  survives  a  particular  risk,  voyage  or  period. 

2.  The  owner  of  a  ship  may  hypothecate  it,  or  its  freightage. 
upon  bottomry,  for  any  lawful  purpose,  and  at  any  time  and  place. 

3.  The  master  of  a  ship  may  hypothecate  it  or  its  freightage, 
upon  bottomry,  only  for  the  purpose  of  procuring  repairs  or  sup- 
plies which  are  necessary  for  accomplishing  the  objects  of  the  voy- 
age, or  for  securing  the  safety  of  the  ship,  and  this  only  v/hen  the 
master  cannot  otherwMse  relieve  the  necessity  of  the  ship,  and  is 
unable  to  reach  adequate  funds  of  the  owner,  or  to  obtain  any 
funds  upon  the  personal  credit  of  the  owner,  and  when  previous 
communication  with  the  owner  cannot  be  had. 

4.  Upon  a  contract  of  bottomry,  the  parties  may  lawfully  stip- 
ulate for  a  rate  of  interest  higher  than  that  allowed  by  law  upon 
other  contracts.  But  a  competent  court  may  reduca  the  rate  when 
it  appears  to  be  unjustifiable  and  exorbitant. 

5.  A  lender  upon  a  contract  of  bottomry,  made  by  the  master 
of  a  ship,  as  such,  may  enforce  the  contract,  even  though  it  was 
not  necessary  for  the  master  to  hypothecate  the  ship — provided 
that  the  lender  did  in  good  faith  believe  in  the  need  for  such  cir- 
cumstances, and  had  made  diligent  and  due   inquiry. 

6.  If  any  security  other  than  the  ship  or  freightage  is  given  in 
a  contract  of  bottomry,  such  stipulation  is  void. 

7.  In  case  of  a  total  loss  of  the  ship  or  freightage,  the  lender 
upon  bottomry  can  recover  nothing.  In  any  risk  to  which  he 
made  the  lean  in  case  of  a  partial  loss,  he  can  recover  only  to  the 
extent  of  the  net  value  to  the  owner  of  the  part  saved. 

8.  Unless  it  is  otherwise  specified,  and  even  though  a  term  of 
credit  is  specified   in   the   contract,   a   bottomry   loan   becomes   due 


70  BULK  LAW 


upon    the    termination    of    the    risk.       (See    also    Liens;    Shipments; 
Seamen.) 
Boycott: 

Boycott  is  the  right  to  the  concerted  withdrawal  of  social 
and  business  intercourse,  and  the  right  (by  all  legitimate  means), 
of  fair  publication,  and  fair  oral  or  written  persuasion,  to  induce 
others  interested  in  or  sympathetic  with  their  cause,  to  withdraw 
their  social  or  business  patronage  from  the  employer.  They  may 
even  request  of  another  that  he  withdraw  his  patronage,  and  may 
use  the  moral  intimidation  and  coercion  of  threatening  a  like  boy- 
cott against  him  if  he  refuses  to  do  so. 

Any  act  of  boycotting  which  tends  to  impair  the  constitutional 
right,  freely  to  labor,  by  means  passing  moral  suasion — and  play- 
ing  by   intimidation   upon   the   physical   fears — is   unlawful. 

Brands:     See  Trade  Marks. 

Brokers:  See  Agents;  Factors;  Employers;  Master  and  Servant; 
Personal  Property  Brokers;  Negotiable  Instruments,  113150;  Real 
Estate  Agents. 

Bulklaw:  Every  transfer  of  personal  property  (except  a  thing  in 
action,  or  a  ship  or  cargo  at  sea  or  in  a  foreign  port) ,  and  every  lien 
on  it  except  a  mortgage,  when  allowed  by  law,  and  a  contract  of 
bottomry  or  respondentia  is  conclusively  presumed  to  be  fraudulent, 
and  therefore  void,  against  those  who  are  his  creditors  while  he  re- 
mains in  possession,  and  the  successors  in  interest  of  such  creJI'^ors, 
and  against  any  person  on  whom  his  estate  devolves  cumbrancts  in 
good  faith  subsequently  to  the  transfer,  provided  it  is  made  by  a 
person  having  at  the  time  the  possession  or  control  of  the  property, 
and  not  accompanied  by  an  immediate  delivery,  and  followed  by  an 
actual  and  continued  change  of  possession  of  the  thing  transferred; 
provided,  however,  that  the  provisions  of  this  section  shall  not  apply 
to  the  transfers  of  wine  in  the  wineries  or  wine  cellars  of  the  makers 
or  ov/ners  of  it,  or  other  persons  having  possession,  care,  and  con- 
trol of  the  same,  and  the  pipes,  casks,  and  tanks  in  which  the  said 
wines  are  contained,  which  transfers  shall  be  made  in  writing,  and 
verified  in  the  same  form  as  provided  for  chattel  mortgages,  and 
which  shall  be  recorded  in  the  book  of  miscellaneous  records  in  the 
office  of  the  county  recorder  of  the  county  in  which  the  same  are 
situated;  provided,  also  that  the  sale,  transfer,  or  assignment  of  a 
stock  in  trade    (or  of  such  a  quantity  of  a  stock  in  trade  as  to  be 


BULK  LAW  71 


substantially  a  whole)  in  bulk,  or  in  any  manner  otherwise  than  in 
the  ordinary  course  of  trade  and  in  the  regular  and  usual  practice 
and  method  of  business  of  the  vendor,  transferrer,  or  assis^nor,  and 
the  sale,  transfer,  assignment  or  mortgage  of  the  fixtures  or  store 
equipment  of  a  merchant  will  be  conclusively  presumed  to  be  fraud- 
ulent and  void  as  against  the  existing  creditors  of  the  seller,  trans- 
ferrer, assignor  or  mortgagor,  unless  at  least  seven  days  before 
the  consummation  of  such  sale,  transfer,  assignment  or  mortgage 
the  seller,  transferrer,  assignor  or  mortgagee,  shall  record  in  the 
office  of  the  county  recorder  in  the  county  or  counties  in  which  the 
said  stock  in  trade,  fixtures,  or  equipment  are  situated  a  notice  of 
said  intended  sale,  transfer,  assignment  or  mortgage,  stating  the 
name  and  address  of  the  intended  seller,  transferrer,  assignor  or 
mortgagor,  and  the  name  and  address  of  the  intended  buyer,  trans- 
feree, assignee,  or  mortgagee  and  a  general  statement  of  the  charac- 
ter of  the  merchandise  or  property  intended  to  be  sold,  assigned, 
transferred  or  mortgaged,  and  the  date  when  and  the  place  where 
the  purchase  price  or  consideration  if  any  there  be,  is  to  be  paid; 
provided,  nevertheless,  that  if  such  intended  sale  is  to  be  at  public 
auction  the  notice  above  required  to  be  recorded  shall  state  that  fact, 
the  time,  terms,  and  place  of  said  sale,  the  names  and  addresses  of 
the  seller  and  auctioneer,  and  a  general  statement  of  the  character 
of  the  merchandise  or  property  intended  to  be  sold;  but  such  sale 
shall  in  no  event  occur  within  seven  days  of  the  date  of  recordation 
of  said  notice;  provided  further,  that  the  provisions  of  this  section 
shall  not  apply  or  extend  to  any  sale,  transfer,  assignment  or  mort- 
gage made  under  the  direction  or  order  of  a  court  of  competent 
jurisdiction  or  by  any  executor,  administrator,  guardian,  receiver 
or  other  officer  or  person  acting  in  the  regular  and  proper  discharge 
of  official  duty,  or  in  the  discharge  of  any  trust  imposed  upon  him 
by  law,  nor  to  any  transfer  or  assignment,  statutory  or  othenvise, 
made  for  the  benefit  of  creditors  generally,  nor  to  any  sale,  trans- 
fer, assignment  or  mortgage  of  any  property  exempt  from  execu- 
tion. 

This  means  that  such  sale,  or  mortgage  is  void  as  against  the 
debtor  and  his  creditors,  and  they  may  bring  suit  and  attach  the 
goods,  or  the  fixtures,  even  though  title  may  then  be  in  the  buyer. 
But  if  the  buyer  in  his  turn  has  again  sold  to  an  innocent  purchaser 
for  value  without  notice,  the  original  transaction  is  not  void  as  to- 


72  CARRIERS 


him — and  the  sale  to  him  would  be  good,  and  the  attachment  would 
not  hold. 

Business  Day  is  any  day  except  a  holiday.      (See  Holidays.) 
Cancellation    of    Written    Instrument:       See    Negotiable    Instru- 
ments,  113204;  Contracts. 

Carriers:  See  also  Lien;  Bill  of  Lading;  Ships;  Jettison;  Freight; 
Luggage. 

1.  The  contract  of  Carriage  is  a  contract  for  the  conveyance 
of  property,   persons,   or  messages  from   one  place  to   another. 

2.  Carriage  is  either:    (a)   Inland;  or,   (b)   Marine. 

Carriers  upon  the  ocean  and  upon  arms  of  the  sea  are  marine 
carriers.     All  others  are  inland  carriers. 

Rights  and  duties  peculiar  to  carriers  by  sea  are  defined  by  acts 
of  Congress, 

3.  A  carrier  is  entitled  to  a  reasonable  compensation,  and  no 
more,  which  he  may  require  to  be  paid  in  advance.  If  payment  is 
refused,  he  may  refuse  to   carry. 

He  must  start  at  such  time  and  place  as  he  announces  to  the 
public,  unless  detained  by  accident  or  the  elements,  or  in  order  to 
connect  with  carriers  on  other  lines  of  travel. 

He  must  always  give  preference  in  time  (and  may  give  a  prefer- 
ence in  price)    to  the  United   States  and  to  this  state. 

He  must  (if  able  to  do  so)  accept  and  carry  whatever  is  offered 
to  him,  at  a  reasonable  time  and  place,  of  a  kind  that  he  under- 
takes or  is  accustomed  to  carry. 

4.  Every  one  who  offers  to  the  public  to  carry  persons,  prop- 
erty, or  messages  (excepting  only  telegraphic  messages),  is  a 
common  carrier  of  whatever  he  thus  offers  to  carry. 

5.  Carriers  without  reward  are  subject  to  the  same  rules  as 
employees  without  reward,  except  so  far  as  is  otherwise  provided  by 
this  article.      (See  Employees.) 

A  carrier  without  reward,  who  has  begun  to  perform  his  under- 
taking, must  complete  it  in  like  manner  as  if  he  had  received  a 
reward,  unless  he  restores  the  person  or  thing  carried  to  as 
favorable  a  position  as  before  he  commenced  the  carriage. 

A  carrier  of  persons  without  reward  must  use  ordinary  care  and 
diligence  for  their  safe  carriage. 

Persons  operating  an  elevator  in  lifting  passengers  are  to  be 
treated  as  common  carriers  of  passengers   (even  though  no  charge 


CARRIERS 


is  made),  and  the  same  duties  and  responsibilities  rest  on  them  as 
to  care  and  diligence  as  upon  other  carriers.  Though  they  are 
not  insurers  of  the  absolute  safety  of  the  passengers,  they  are  bound 
to  the  utmost  care  and  diligence  of  very  cautious  persons  (as  far 
as  human  care  and  foresight  can  go),  and  are  responsible  for  in- 
jury caused  by  the  slightest  neglect  against  which  human  prudence 
and  foresight  might  have  guarded. 

6.  A  carrier  of  persons  for  reward  must  use  the  utmost  care 
and  diligence  for  their  safe  carriage,  must  provide  everything 
necessary  for  that  purpose,  and  must  exercise  to  that  end  a  reason- 
able degree  of  skill. 

A  carrier  of  persons  for  reward  is  bound  to  provide  vehicles 
safe  and  fit  for  the  purpose  to  v.'hich  they  are  put,  and  is  not  ex- 
cused for  default  in  this  respect  by  any  degree  of  care. 

A  carrier  of  persons  for  reward  must  not  overcrowd  or  over- 
load his  vehicle. 

A  carrier  of  persons  for  reward  must  give  to  passengers  all  such 
accommodations  as  are  usual  and  reasonable,  and  must  treat  them 
with  civility,  and  give  them  a  reasonable  degree  of  attention. 

A  carrier  of  persons  for  reward  must  travel  at  a  reasonable  rate 
of  speed,  and  without  any  unreasonable  delay,  or  deviation  from 
his  proper  route. 

7.  A  CARRIER  FOR  HIRE  has  a  lien  for  freightage  and  for 
services  rendered  at  request  of  shipper  or  consignee  in  and  about 
the  care,  transportation  and  preservation  of  the  property,  and  he 
also  has  a  lien  for  money  advanced  at  the  request  of  the  shipper 
or  consignee  to  discharge  a  prior  lien. 

8.  Property  is  called  freight;  the  reward,  if  any,  to  be  paid  to 
its  carriers  is  called  freightage;  the  person  who  delivers  the  freight 
to  the  carrier  is  called  the  consignor;  and  the  person  to  whom  it 
is  to  be  delivered  is  called  the  consignee. 

A  carrier  of  property  for  reward  must  use  at  least  ordinary 
care  and  diligence  in  the  performance  of  all  his  duties.  A  carrier 
without  reward  must  use  at  least  slight  care  and  diligence. 

A  carrier  must  comply  with  the  directions  of  the  consignor  or 
consignee  to  the  same  extent  that  an  employee  is  bound  to  comply 
with  those  of  his  employer. 

When  the  directions  of  a  consignor  and  consignee  are  conflicting, 
the  carrier  must  comply  with  those  of  the  consignor  in  respect  to 


74  CARRIERS 


all  matters  except  the  delivery  of  the  freight,  as  to  which  he  must 
comply  with  the  direction  of  the  consignee,  unless  the  consignor 
has  specially  forbidden  the  carrier  to  receive  orders  from  the  con- 
signee inconsistent  with  his  own. 

A  carrier  of  property  must  deliver  it  to  the  consignee,  at  the 
place  to  which  it  is  addressed,  in  the  manner  usual  at  that  place. 

If  there  is  no  usage  to  the  contrary  at  the  place  of  delivery, 
freight  must  be  delivered  as  follows:  (a)  If  carried  upon  a  railway 
owned  or  managed  by  carrier,  it  may  be  delivered  at  the  station 
nearest  to  the  place  to  which  it  is  addressed;  (b)  If  carried  by  sea 
from  a  foreign  country,  it  may  be  delivered  at  the  wharf  where 
the  ship  moors,  within  a  reasonable  distance  from  the  place  of  ad- 
dress; or,  if  there  is  no  wharf,  on  board  a  lighter  alongside  the 
ship;  or,  (c)  In  all  cases,  it  must  be  delivered  to  the  consignee  or 
his  agent,  personally,  if  either  can,  with  reasonable  diligence,  be 
found.      (See  F.   0.  B.) 

If,  for  any  reason,  a  carrier  does  not  deliver  the  freight  to  the 
consignee  or  his  agent  personally,  he  must  give  notice  to  the  con- 
signee of  its  arrival,  and  keep  the  freight  in  safety  (upon  his  re- 
sponsibility as  a  warehouseman),  until  the  consignee  has  had  a  rea- 
sonable time  to  remove  it.  If  the  place  of  residence  or  business 
of  the  consignee  be  unknown  to  the  carrier,  he  may  give  notice 
by  letter  dropped  in  the  nearest  postoffice. 

If  the  consignee  does  not  accept  and  remove  freight  within  a 
reasonable  time  after  carrier  has  fulfilled  his  obligations  to  da- 
liver,  or  duly  offered  to  fulfill  the  same,  the  carrier  may  exonerate 
himself  from  further  liability  by  placing  the  freight  in  a  suitable 
warehouse,  on  storage,  on  account  of  the  consignee,  and  giving 
notice  to  the  consignee  of  such  storage. 

A  carrier  may  require  his  freightage  to  be  paid  upon  his  receiv- 
ing the  freight,  but  if  he  does  not  demand  it  then,  he  cannot  re- 
quire payment  until  he  is  ready  to  deliver  the  freight  to  the  con- 
signee. 

The  consignor  of  freight  is  presumed  to  be  liable  for  the  freight- 
age; but  if  the  contract  between  him  and  carrier  provides  that  the 
consignee  shall  pay  it,  and  the  carrier  allows  the  consignee  to  take 
the  freight,  the  carrier  cannot  afterward  recover  the  freightage 
from  the  consignor. 

The  consignee  of  freight  is  liable   for  the  freightage,   if  he  ac- 


CARRIERS  75 


cepts  the  freight  with  notice  of  the  intention  of  the  consignor  that 
the  consignee  should  pay  it. 

No  freightage  can  be  charged  upon  the  natural  increase  of 
freight. 

If  freightage  is  proportioned  by  a  bill  of  lading  or  other  con- 
tract made  between  the  consignor  and  carrier,  the  carrier  is  en- 
titled to  pajTnent  according  to  the  apportionment,  for  so  much  as 
he  delivers. 

If  a  consignee  voluntarily  receives  freight  at  a  place  short  of 
the  one  appointed  for  delivery,  the  carrier  is  entitled  to  a  just 
proportion  of  the  freightage,  according  to  distance.  If  the  carrier, 
being  ready  and  willing,  offers  to  complete  the  transit,  he  is  en- 
titled to  the  full  freightage.  If  he  does  not  thus  offer  completion, 
and  the  consignee  receives  the  freight  only  from  necessity,  the 
carrier  is  not  entitled  to  any  freightage. 

If  freight  is  carried  further,  or  more  expeditiously  than  was 
agreed  upon  by  the  parties,  the  carrier  is  not  entitled  to  additional 
compensation,  and  cannot  refuse  to  deliver  it,  on  the  demand  of  the 
consignee  at  the  place  and  time  of  its  arrival. 

If  a  common  carrier  accepts  freight  for  a  place  beyond  his 
usual  route,  he  must,  unless  he  stipulates  otherwise,  deliver  it  at 
the  end  of  his  route  in  that  direction  to  some  other  competent  car- 
rier carrying  to  the  place  of  address,  or  connected  with  those  who 
thus  carry,  and  his  liability  ceases  upon  making  such  delivery. 

If  freight  addressed  to  a  place  beyond  the  usual  route  of  the 
common  carrier  who  first  received  it  is  lost  or  injured,  he  must, 
within  a  reasonable  time  after  the  demand,  give  satisfactory  proof 
to  the  consignor  that  the  loss  or  injury  did  not  occur  while  it  was 
in  his  charge,  or  he  will  be  himself  liable  for  it. 

In  respect  to  any  service  rendered  by  a  common  carrier  about 
freight,  other  than  its  carriage  and  delivery,  his  rights  and  obliga- 
tions are  defined  by  the  titles  on  Deposit  and  Service. 

If,  from  any  cause  other  than  want  of  ordinary  care  and  dili- 
gence on  his  part,  a  common  carrier  is  unable  to  deliver  perishable 
property  transported  by  him,  and  collect  his  charges  on  it,  he  may 
cause  the  property  to  be  sold  in  open  market  to  satisfy  his  lien 
for  freightage.      (See  Liens.) 

A  carrier  has  a  lien  for  freightage,  which  is  regulated  by  the 
article  on  Llens^ 


76  CARRIERS 


9.  The  obligations  of  a  common  carrier  cannot  be  limited  by 
general  notice  on  his  part,  but  may  be  limited  by  special  contract. 

He  cannot  be  exonerated  (by  any  agreement  made  in  anticipa- 
tion) from  liability  for  the  gross  negligence,  fraud,  or  wilful 
wrong,  of  himself  or  his  servants.    (See  Liquidated  Damages.) 

A  passenger,  consignor,  or  consignee,  by  accepting  a  ticket,  bill 
of  lading,  or  written  contract  for  carriage  (with  a  knowledge  of 
its  terms),  assents  to  the  rate  of  hire,  the  time,  place,  and  manner 
of  delivery  in  it  stated;  and  also  assents  to  the  limitations  stated 
in  it  upon  the  amount  of  the  carrier's  liability  in  case  of  property 
carried  in  packages,  trunks  or  boxes,  if  lost  or  injured  (when  the 
value  of  such  property  is  not  named) ;  and  also  assents  to  the 
limitation  stated  in  it  to  the  carrier's  liability  for  loss  or  injury  to 
live  animals  carried.  But  his  assent  to  any  other  modification  of 
the  carrier's  obligations  contained  in  such  insti'uments  can  be 
manifested  only  by  his  signature  to  the  same. 

A  common  carrier  is  not  responsible  for  loss  or  miscarriage  of  a 
letter,  or  package  having  the  form  of  a  letter,  containing  money  or 
notes,  bills  of  exchange,  or  other  papers  of  value,  unless  he  be  in- 
formed at  the  time  of  its  receipt  of  the  value  of  its  contents. 

Unless  the  consignor  accompanies  the  freight  and  retains  ex- 
clusive control  of  it,  an  inland  common  carrier  of  property  is 
liable,  from  the  time  that  he  accepts  until  he  relieves  himself  from 
the  liability,  for  the  loss  or  injury  from  any  cause  whatever,  ex- 
cept: (a)  An  inherent  defect,  vice,  or  weakness,  or  a  spontaneous 
action,  of  the  property  itself;  (b)  The  act  of  a  public  enemy  of  the 
United  States,  cr  of  this  state;  (c)  The  act  of  the  law;  or,  (d)  Any 
irresistible  superhuman  cause. 

A  common  carrier  is  liable,  even  in  the  cases  excepted  by  the 
last  section,  if  his  want  of  ordinary  care  exposes  the  property  to 
the  cause  of  the  loss. 

He  is  liable  for  delay  only  when  it  is  caused  by  his  want  of 
ordinary  care  and  diligence. 

A  common  carrier  of  gold,  platina,  or  precious  stones,  or  of 
imitations  thereof,  in  a  manufactured  or  unmanufactured  state;  of 
timepieces  of  any  description;  of  negotiable  paper  or  other  valu- 
able writings;  of  pictures,  glass  or  chinaware;  of  statuary,  silk,  or 
laces;  or  of  plated  ware  of  any  kind,  is  not  liable  for  more  than 
fifty  dollars  upon  the  loss  or  injury  of  any  package   of  such  arti- 


CHATTEL  77 


dcs,  unless  he  has  notice,  upon  his  receipt  of  it,  by  mark  upon  the 
pacltagc  or  otherwise,  of  the  nature  of  the  freight;  nor  is  such 
carrier  liable  upon  any  package  carried  for  more  than  the  value 
of  the  articles  named  in  the  receipt  or  the  bill  of  lading. 

10.  A  common  carrier  of  persons  must  provide  a  sufficient 
number  of  vehicles  to  accommodate  all  the  passengers  who  can  be 
reasonably  expected  to  require  carriage  at  any  one  time. 

He  must  provide  every  passenger  with  a  seat.  He  must  not 
overload  his  vehicle  by  receiving  and  carrying  more  passengers  than 
its  rated  capacity  allows. 

He  may  make  rules  for  the  conduct  of  his  business,  and  may  re- 
quire passengers  to  confoi'm  to  them,  if  they  are  lawful,  public, 
uniform  in  their  application,  and  reasonable. 

He  may  demand  the  fare  of  passengers,  either  at  starting  or  at 
any  subsequent  time. 

A  passenger  who  refuses  to  pay  his  fare  or  to  conform  to  any 
lawful  regulation  of  the  carrier,  may  be  ejected  from  the  vehicle 
by  the  carrier.  But  this  must  be  done  with  as  little  violence  as 
possible,  and  at  any  usual  stopping  place  or  near  some  dwelling- 
house. 

A  passenger  upon  a  railroad  train  who  has  not  paid  his  fare  be- 
fore entering  the  train,  if  he  has  been  afforded  an  opportunity  to 
do  so,  must,  upon  demand,  pay  ten  per  cent  in  addition  to  the 
regular  rate. 

After  having  ejected  a  passenger,  a  carrier  has  no  right  to  re- 
quire the  payment  of  any  part  of  his  fare. 

Cartwright   Law:      See   Monopolies. 

Cattle:     See  Liens;  Estrays;  Larceny. 

Causa    Mortis:       See    Gifts. 

Caveat  Emptor:  "Let  the  Buyer  Beware."  An  old  business  rule, 
which  no  longer  is  a  maxim  of  law.  (See  False  Representations; 
Fraud.) 

Chatiels:      See  Personal  Property;   Chattel  Mortgages. 

Chattel  Mortgages:  See  Personal  Property;  Community  Prop- 
erty; Mortgages;  Attachment;  Crops;  Transfer;  Bill  of  Lading, 
2130a,  2130c;  Bankruptcy. 

A  mortgage  of  personal  property  is  void  as  against  creditors  of 
ihe  mortgagor,  and  subsequent  purchasers  and  encumbrancers  of 
the  property  in  good  faith  and  for  value,  unless  the  instrument  is 


78  CHATTEL  MORTGAGE 


aecompanied  by  an  affidavit  of  all  the  parties  to  it,  specifically 
stating  that  the  mortgage  is  made  in  good  faith,  and  without  any 
design  to  hinder,  delay  or  defraud  creditors.  The  follov/ing  words 
are  sufficient  for  the  purpose,  and  after  being  sworn  to,  must  be 
attached   to   the  mortgage   and   recorded   with   it: 

"A.  Eee,  mortgagor  in  the  foregoing  mortgage,  and  C.  Dee,  mort- 
gagee in  said  mortgage,  being  duly  SAVorn,  each  for  himself,  deposes 
and  says,  that  the  aforesaid  mortgage  is  made  in  good  faith,  and 
without  any  design  to  hinder,  delay,  or  defraud  creditors." 

No  particular  form  of  instrument  is  necessary,  but  the  propertjr 
must  be  described  in  such  a  manner  as  to  make  identification  pos- 
sible with  certainty,  so  that  even  a  stranger  could  pick  out  the 
property  mortgaged  with  nothing  but  the  written  description  to 
guide  him.  While  this  may  not  at  all  times  be  possible,  still  it 
should  be  aimed  at,  for  if  the  things  mortgaged  cannot  be  identified 
with  sufficient  certainty  by  the  written  description,  aided  by  oral 
evidence,  then  the  mortgage  is  so  uncertain  as  to  be  useless. 

A  mortgage  can  be  created,  renewed,  or  extended,  only  by  writ- 
ing, executed  with  all  the  formalities  required  in  the  grant  of  real 
property.  There  may  be  such  things  as  oral  mortgages,  but  not  in 
this  state. 

Mortgages  may  be  made  upon  all  growing  crops,  including  grapes 
and  fruit.  Rolling  stock  of  a  railroad,  steamboats,  machinery,  steam 
engines  and  boilers,  mining  machinery.  Printing  presses,  type- 
setting machines,  and  all  printing  materials  and  accessories.  Pro- 
fessional libraries,  and  all  instruments  of  surveyors,  physicians  and 
dentists,  and  all  instruments,  furniture  and  fixtures  of  a  photo- 
graph gallery.  Upholstery,  furniture  and  household  goods,  pianos 
and  organs,  oil  paintings  and  works  of  art,  all  furniture  and  equip- 
ments usually  found  in  a  hotel,  furniture,  fixtures,  bars  and  ap- 
purtenances of  saloons.  Machinery  and  utensils  of  wineries,  also 
wines,  brandy,  syrups,  and  cooperage.  Cattle,  horses,  mules, 
swine,  sheep,  goats,  fowls,  and  the  increase  thereby.  Harvesters, 
threshing  outfits,  wagons,  implements,  equipment  of  a  livery  stable. 
Abstract  systems,  books,  maps,  papers,  and  slips  of  searchers  of 
records.  Raisins  and  dried  fruits,  also  all  boxes,  fruit  graders, 
trays,  ladders  and  other  utensils.  Bees,  beehives,  apiaries,  frames, 
combs,  extractors  and  all  honey  at  the  apiaries.  Machineiy  and 
all  apparatus  used  in  producing  and  refining  petroleum,  asphaltum, 


CHATTEL  MORTGAGE  7f 


oils   and   greases.      Machinery   used    in   the   production    and    manu- 
facture of  lumber,  with  all  tools  and  appliances. 

The  list  of  things  which  can  be  mortgaged  now  includes  all  kinds 
of  personal  property  except  that  which  is  not  capable  of  manual 
delivery,  articles  of  wearing  apparel  and  personal  adornment,  and 
the  stock  in  trade  of  a  merchant,  including  a  crop  to  be  raised 
before  it  is  planted,  to  secure  future  advances  as  well  as  existing 
indebtedness  and  its  lien  continues  after  severance  as  long  as  it 
remains  on  the  land  of  the  mortgagor. 

Under  the  amended  statute  of  1917  all  mortgages  of  the  fixtures 
of  a  merchant  must  be  recorded  in  the  office  of  the  county  clerk 
of  the  county  where  the  goods  are  situated  at  least  seven  days 
before  the  mortgage  takes  effect.      (See  Bulk  Law.) 

A  mortgage  of  personal  property,  if  to  be  recorded,  must  be 
acknov/ledged  and  recorded  in  the  county  where  the  mortgagor  re- 
sides, if  he  resides  in  the  state;  also  in  the  county  where  the  prop- 
erty is  situated,  if  in  a  different  county  from  where  the  mortgagor 
resides.  If  the  property  is  removed  to  another  county  at  any  time 
during  the  continuance  of  the  mortgage,  a  copy  of  the  mortgage 
must  also  be  filed  in  the  county  to  which  it  is  removed,  within 
thirty  days  after  the   removal. 

Every  person  who,  after  mortgaging  any  personal  property,  ex- 
cepting locomotives,  engines,  rolling  stock  of  a  railroad,  steamboat 
machinery  in  actual  use,  and  vessels,  during  the  existence  of  such 
mortgage,  with  intent  to  defraud  the  mortgagee,  takes,  drives,  or 
otherwise  removes  it,  from  the  county  where  it  was  situate  when 
mortgaged,  without  the  written  consent  of  the  mortgagee,  or  who 
sells,  transfers,  or  encumbers  any  part  of  it,  is  guilty  of  larceny, 
and  is  punishable  accordingly;  unless  at  the  time  of  making  such 
sale,  transfer,  or  encumbrance,  such  mortgagor  informs  the  per- 
son to  whom  such  sale,  transfer,  or  encumbrance  is  made,  of  the 
existence  of  the  prior  mortgage,  and  also  informs  the  prior  mort- 
gagee of  the  intended  sale,  transfer,  or  encumbrance,  in  writing,  by 
giving  the  name  and  place  of  residence  of  the  party  to  whom  the 
sale,  transfer,  or  encumbrance  is  to  be  made. 

When  a  sale  is  made  of  mortgaged  personal  property  upon  a 
writ  of  execution,  the  purchaser  acquires  an  absolute  title  to  it. 
There  is  no  right  of  redemption. 

Charter  Party:     See  Ships;  Wrecks;  Marine  Insurance. 


80  CHECKS 


Checks:  See  Negotiable  Instruments,  1132 65,  and  following;  Ac- 
cord and  Satisfaction;  Forgery. 

Every  person  who  for  himself  or  as  the  agent  or  representativ* 
of  another  or  as  an  officer  of  a  corporation,  wilfully,  with  intent 
to  defraud,  makes  or  draws  or  utters  or  delivers  to  another  person 
any  check  or  draft  on  a  bank,  banker  or  depositary  for  the  payment 
of  money,  knowing  at  the  time  of  such  making,  drawing,  uttering, 
or  delivery,  that  he  or  his  principal,  or  the  corporation  of  which 
he  is  an  officer,  has  not  sufficient  funds  in,  or  credit  with  such  bank, 
banker  or  depositary,  to  meet  such  check  or  draft  in  full  upon  its 
presentation,  is  punishable  by  imprisonment  in  the  county  jail  for 
not  more  than  one  year  or  in  the  state  prison  for  not  more  than 
fourteen  years.  The  word  "credit"  as  used  herein  shall  be  con- 
strued to  be  an  arrangement  or  understanding  with  the  bank  or 
depositary  for  the  payment  of  such  check  or  draft.  (See  Bank; 
Forgery;  Accord  and  Satisfaction.) 

When  a  person  gives  a  check  in  payment,  and  you  receipt  his 
bill,  nevertheless,  the  bill  is  not  paid  unless  the  check  is  paid.  If 
he  should  stop  payment  on  the  check,  he  would  still  have  to  pay 
you  in  some  other  manner.  If  a  check  is  endorsed  by  payee,  and 
then  lost  by  him  or  stolen  from  him,  and  paid  by  the  bank,  the 
loss  falls  on  him.  If  a  check  is  cashed  by  an  innocent  party  with- 
out notice,  and  payment  is  stopped  on  it,  the  one  who  cashed  it  is 
entitled  to  have  it  paid  by  the  maker,  no  matter  what  was  the  rea- 
son why  payment  was  stopped — even  though  it  was  because  of 
some  fraud  which  the  payee  had  practised  upon  the  maker,  and 
the  maker  did  not  discover  until  after  the  check  was  delivered. 
This  is  a  matter  entirely  between  the  payee  and  maker,  and  the 
innocent  party  should  not  suffer  when  he  cashed  the  check  in 
good  faith. 

But  if  the  signature  on  a  check  is  forged,  or  if  an  indorsement 
on  it  is  forged,  and  the  bank  cashes  the  check  upon  its  belief  that 
the  signatures  are  good — the  bank  must  stand  the  loss. 

Checks  should  always  be  signed  the  same  way — the  way  in  which 
the  name  appears  on  the  bank  book;  and  the  endorsement  should 
always  be  the  same  as  upon  the  face  of  the  check,  even  though  it 
is  not  correct.  If  incorrect,  endorse  it  as  it  is,  and  then  sign  the 
correct  name  below  it. 

If  a  check  is  given  you  in  payment,  and  you  do  not  wish  to  ac- 


CHILDREN  81 


cept  it,  because  the  amount  is  smaller  than  you  claim — you  must 
return  the  entire  check,  and  cannot  apply  it  on  account,  and  write 
the  maker  that  you  will  expect  him  to  pay  the  balance. 

Children:     See  Guardian  and  Ward;  Crimes;  Divorce;  Succession; 

A  minor  is  a  male  under  twenty-one  and  a  female  under  eighteen. 
Calculated  from  the  first  minute  of  the  day  on  which  the  person  is 
born  to  the  same  minute  of  the  corresponding  day  completing  the 
period  of  majority.  A  person  attains  majority  the  first  moment  of 
the  day  preceding  21st  anniversary  of  natal  day;  in  Criminal  Law, 
the  age  of  responsibility  is  13;  A  living  foetus  is  a  person,  and  may 
inherit. 

"Youth  is  ever  the  time  of  heedlessness,  of  impulsiveness,  and  of 
forgetfulness,"  but  the  law  imposes  upon  minors  the  duty  of  giving 
such  attention  to  their  surroundings  and  such  care  to  avoid  danger, 
as  may  be  reasonably  expected  from  persons  of  their  age  and  capa- 
city. Whether  a  minor  behaves  with  the  care  and  prudence  due 
from  one  of  his  years  and  experience  is  a  question  for  the  jury  to 
decide.  It  cannot  be  said,  as  a  matter  of  law,  at  what  age  a  boy 
would  be  possessed  of  such  intelligence,  foresight  and  judgment  as 
to  blame  him  for  being  negligent  in  a  case  where  he  was  injured. 
The  care  which  a  child  is  required  to  exercise  in  such  matters  is  to 
be  determined  from  the  circumstances  of  each  case. 

A  minor  is  civilly  liable  for  a  wrong  committed  by  him,  but  not 
in  exemplary  damages,  unless  at  the  time  he  knew  it  was  wrongful. 
He  may  enforce  his  rights  by  legal  action,  except  that  a  guardian 
must  be  appointed  for  him. 

He  may  make  and  draw  deposits,  and   draw  dividends  and  give 

valid  receipts  for  them. 

Minors  cannot  delegate  a  power,  nor  (under  the  age  of  18),  make 
a  contract  relating  to  real  estate,  or  relating  to  any  personal  prop- 
erty not  in  his  control. 

The  contract  of  a  minor  may  be  disaffirmed  (except  for  his  neces- 
saries or  those  of  his  family,  entered  into  when  not  under  the  care 
of  a  guardian  or  parent  able  to  provide  for  him  or  them).  The 
minor  himself  may  disaffirm,  if  contracts  are  made  while  he  is  under 
the  age  of  18,  before  his  majority  or  a  reasonable  time  afterward, 
or,  if  he  die  within  that  period,  his  heirs  or  personal  representative 
may;  but  if  the  contract  be  made  while  over  the  age  of  18  and  under 


82  CHILDREN 


21,  he  may  then  disaflfirm  in  like  manner  by  restoring  the  considera- 
tion or  paying  its  equivalent. 

When  a  husband  and  wife  live  in  a  state  of  separation,  without 
being  divorced,  any  court  of  competent  jurisdiction,  upon  application 
of  either,  if  an  inhabitant  of  this  State,  may  inquire  into  the  custody 
of  any  unmarried  minor  child  of  the  maiTiage,  and  may  award  the 
custody  of  such  child  to  either,  for  such  time  and  under  such  regula- 
tions as  the  case  may  require. 

A  child  born  before  wedlock  becomes  legitimate  by  the  subsequent 
marriage  of  its  parents. 

The  obligation  for  a  father  to  support  his  child — legitimate  or 
illegitimate — is  a  continuing  one,  against  which  the  statute  of  limita- 
tions will  not  run  as  long  as  the  child  needs  such  support.  Neither 
the  father  nor  the  mother  may  bargain  away  the  child's  right  of 
support. 

WHO  MAY  INDENTURE:  A  minor  of  fourteen  years  of  age  or 
over  may  be  bound  by  his  father,  or  by  his  mother  or  guardian  in 
case  of  the  father's  death  or  incompetency,  or  where  the  father  has 
wilfully  abandoned  his  family,  for  one  year  without  making  suitable 
provision  for  their  support,  or  is  habitually  intemperate  or  is  a 
vagrant;  by  an  executor  who  by  the  will  of  the  father  is  directed 
to  bring  up  the  child  to  a  trade  or  calling;  by  the  mother  alone  if 
the  child  is  illegitimate;  or  by  the  Judge  of  the  Superior  Court  if 
the  minor  is  poor,  homeless,  chargeable  to  the  County  or  State,  or 
an  outcast  who  has  no  visible  means  of  obtaining  an  honest  liveli- 
hood. If  a  minor  has  no  parent  or  guardian  competent  to  act  he 
may,  with  the  approval  of  the  Superior  Court,  bind  himself.  The 
minor's  consent  must  be  expressed  in  the  indenture  and  testified  to 
by  his  signing  the  same. 

TERM :  A  male  may  be  bound  until  twenty-one  and  a  female  until 
eighteen  years  of  age. 

DUTY  OF  MASTER:  The  master  must  in  the  case  of  an  orphan 
or  homeless  minor  cause  the  apprentice  to  be  taught  reading,  A\'Titing, 
and  the  ground  rules  of  arithmetic,  including  ratio  and  proportion, 
must  give  him  the  requisite  instruction  in  the  different  branches  of 
his  trade,  and,  at  the  expiration  of  his  term  of  service,  must  give 
him  $50  in  gold  and  two  new  suits  of  clothes  to  be  worth  in  the  ag- 
gregate at  least  $60.     In  all  cases  the  master  must  pay  and  deliver  to 


CnrLDREN  83 


the  apprentice  the  money,  clothes,  and  other  property  to  which  he 
is  entitled  under  the  indenture. 

INTERFERENCE:  It  is  unlawful  to  aid,  entice,  counsel  or  per- 
suade an  apprentice  to  run  away,  or  to  employ,  harbor,  or  conceal 
him,  knowing  him  to  be  a  runaway. 

BIRTH :  Every  person  who  fraudulently  produces  an  infant, 
falsely  pretending  it  to  have  been  born  of  any  parent  whose  child 
would  be  entitled  to  inherit  any  real  estate,  or  to  receive  a  share  of 
any  personal  estate,  with  intent  to  intercept  the  inheritance  of  any 
such  real  estate,  or  the  distribution  of  any  such  personal  estate  front 
any  person  lawfully  entitled  to  it,  may  be  imprisoned  for  10  years. 

Every  person  to  whom  an  infant  has  been  confided  for  nursing, 
education,  or  any  other  purpose,  who,  with  intent  to  deceive  any 
parent  or  guardian  substitutes  another  child  in  the  place  of  the 
one  so  confided,  is  punishable  by  imprisonment  in  the  state  prison 
not  exceeding  ten  years. 

PARENT  AND  CHILD:  All  children  born  in  wedlock  are  pre- 
sumed to  be  legitimate. 

All  children  of  a  woman  who  has  been  married,  born  within  ten 
months  after  the  dissolution  of  the  marriage,  are  presumed  to  be 
legitimate  children  of  that  marriage.  The  presumption  of  legiti- 
macy can  be  disputed  only  by  the  (1)  husband  or  (2)  wife,  or  the 
(3)  descendant  of  one  or  both  of  them.  Illegitimacy,  in  such  case, 
may  be  proved  like  any  other  fact. 

The  parent  entitled  to  the  custody  of  a  child  must  give  him 
support  and  education  suitable  to  his  circumstances.  If  the  sup- 
port and  education  which  the  father  of  a  legitimate  child  is  able  to 
give  are  inadequate,  the  mother  must  assist  him  to  the  extent  of  her 
ability. 

The  father,  as  well  as  the  mother,  of  an  illegitimate  child  must 
give  him  support  and  education  suitable  to  his  circumstances.  A 
civil  suit  to  enforce  such  obligations  may  be  maintained  in  behalf 
of  a  minor  illegitimate  child,  by  his  mother  or  guardian,  and  in 
such  action  the  Court  shall  have  power  to  order  and  enforce  per- 
formance in  a  suit  for  divorce  by  a  wife. 

The  father  and  mother  of  a  legitimate  unmarried  minor  child 
are  equally  entitled  to  its  custody,  services  and  earnings.     If  either 


84  CHILDREN 


the  father  or  mother  be  dead  or  unable  or  refuse  to  take  the 
custody  or  has  abandoned  his  or  her  family,  the  other  is  entitled  to 
its  custody,  services  and  earninjys. 

The  husband  and  father,  as  such,  has  no  right  superior  to  those 
of  the  wife  and  mother,  in  rej^ard  to  the  care,  custody,  education, 
and  control  of  the  children  of  the  mariiage,  while  such  husband  and 
wife  live  separate  and  apart  from  each  other. 

Without  application  for  a  divorce,  the  husband  or  the  wife  may 
bring  an  action  for  the  exclusive  control  of  the  children  of  the 
marriage;  and  the  Court  may,  (1)  during  the  pendency  of  such 
action,  or  (2)  at  the  final  hearing  thereof,  or  (3)  afterward,  make 
such  order  or  decree  in  regard  to  the  support,  care,  custody,  edu- 
cation, and  control  of  the  children  of  the  marriage,  as  may  be  just, 
and  in  accordance  with  the  natural  rights  of  the  parents  and  the 
best  interests  of  the  children,  and  may  (4)  at  any  time  thereafter 
amend,  vary,  or  modify  such  order  or  decree,  as  the  natural  rights 
and  the  interests  of  the  parties,  including  the  children,  may  require. 

The  mother  of  an  illegitimate  unmarried  minor  is  entitled  to  its 
custody,  services,  and  earnings.  The  proper  Court  may  direct  an 
allowance  to  be  made  to  the  parent  of  a  child,  out  of  its  property, 
for  its  past  or  future  support  and  education,  on  such  conditions  as 
may  be  proper,  whenever  such  direction  is  for  its  benefit.  The 
parent,  as  such,  has  no  control  over  the  property  of  the  child. 

The  abuse  of  parental  authority  is  the  subject  of  judicial  cogni- 
sance in  a  civil  action  brought  (1)  by  the  child,  or  (2)  by  its  rela- 
tive within  the  third  degree,  or  (3)  by  the  supervisors  of  the  county 
where  the  child  resides;  and  when  the  abuse  is  established,  the  child 
may  be  freed  from  the  dominion  of  the  parent,  and  the  duty  of  sup- 
port and  education  enforced. 

The  authority  of  a  parent  ceases:  ( (1)  Upon  the  appointment,  by 
a  Court,  of  a  guardian  of  the  person  of  a  child;  (2)  Upon  the  mar- 
riage of  the  child;  or,  (3)  Upon  its  attaining  majority. 

If  a  parent  chargeable  with  the  support  of  a  child  dies,  (1)  leav- 
ing it  chargeable  to  the  County,  and  (2)  leaving  an  estate  sufficient 
for  its  support,  the  sui^ervisors  of  the  County  may  claim  provision 
for  its  support  from  the  parent's  estate  by  civil  action,  and  for  this 
purpose  may  have  the  same  remedies  as  any  creditors  against  that 
estate,  and  against  the  heirs,  devisees,  and  next  of  kin  of  the  parent. 


CHILDREN  85 


It  is  the  duty  of  the  (1)  father,  the  (2)  mother,  and  the  (3) 
children  of  any  poor  person  who  is  unable  to  maintain  himself  by 
work,  to  maintain  such  person  to  the  extent  of  their  ability.  The 
promise  of  an  adult  child  to  pay  for  necessaries  previously  furnished 
to  such  parent,  is  binding. 

If  a  parent  neglects  to  provide  articles  necessary  for  his  child 
who  is  under  his  charge,  according  to  his  circumstances,  a  third 
person  may  in  good  faith  supply  such  necessaries,  and  recover  the 
reasonable  value  of  them  from  the  parent. 

A  parent  is  not  bound  to  compensate  (1)  the  other  parent,  or  (2) 
a  relative,  for  the  voluntary  support  of  his  child,  without  an  agree- 
ment for  compensation,  nor  (3)  to  compensate  a  stranger  for  the 
aupport  of  a  child  who  has  abandoned  the  parent  without  just  cause. 

A  husband  is  not  bound  to  maintain  his  wife's  children  by  a 
former  husband;  but  if  he  receives  them  into  his  family  and  sup- 
ports them,  it  is  presumed  that  he  does  so  as  a  parent,  and,  where 
such  is  the  case,  they  are  not  liable  to  him  for  their  support,  nor 
he  to  them  for  their  services. 

Where  a  child,  after  attaining  majority,  continues  to  serve  and 
to  be  supported  by  the  parent,  neither  party  is  entitled  to  compen- 
sation, in  the  absence  of  an  agreement. 

The  parent,  whether  solvent  or  insolvent,  may  relinquish  to  the 
child  the  right  of  controlling  him  and  receiving  his  earnings.  Aban- 
donment by  the  parent  is  presumptive  evidence  of  such  relinquish- 
ment. 

The  wages  of  a  minor  employed  in  service  may  be  paid  to  him 
until  the  parent  or  guardian  entitled  to  them  gives  the  employer 
notice  that  he  claims  such  wages. 

A  parent  entitled  to  the  custody  of  a  child  has  a  right  to  change 
his  residence,  subject  to  the  power  of  the  proper  Court  to  restrain 
a  removal  which  would  prejudice  the  rights  or  welfare  of  the  child. 

ADOPTION:  Any  minor  child  may  be  adopted  by  any  adult  per- 
son. The  person  adopting  the  child  must  be  at  least  ten  years  older 
than  the  person  adopted.  A  married  man,  not  lawfully  separated 
from  his  wife,  can  not  adopt  a  child  without  the  consent  of  his  wife, 
nor  can  a  married  woman,  not  thus  separated  from  her  husband, 
without  his  consent;  provided,  the  husband  or  wife,  not  consenting, 
is  capable  of  giving  such  consent.     A  legitimate  child  can  not  be 


86  CHILDREN 


adopted  without  the  consent  of  its  parents  if  living,  nor  an  illegiti- 
mate child  without  the  consent  of  its  mother  if  living. 

The  consent  of  a  child,  if  over  the  age  of  twelve  years,  is  necessary 
to  its  adoption. 

A  child,  when  adopted,  may  take  the  family  name  of  the  persom 
adopting.  After  adoption,  the  two  shall  sustain  toward  each  other 
the  legal  relation  of  parent  and  child,  and  have  all  the  rights  and  be 
subject  to  all  the  duties  of  that  relation.  The  parents  of  an  adopted 
child  are,  from  the  time  of  the  adoption,  relieved  of  all  parental 
duties  toward,  and  all  responsibility  for,  the  child  so  adopted,  and 
have  no  right  over  it. 

The  father  of  an  illegitimate  child,  by  (1)  publicly  acknowledg- 
ing it  as  his  own,  (2)  receiving  it  as  such,  (3)  with  the  consent  of 
his  wife,  if  he  is  married,  (4)  into  his  family,  and  (5)  otherwise 
treating  it  as  if  it  were  a  legitimate  child,  thereby  adopts  it  as  such; 
and  such  child  is  thereupon  deemed  for  all  purposes  legitimate  from 
the  time  of  its  birth.  The  foregoing  provisions  do  not  apply  to 
such  an  adoption.  , 

Adopted  children  cannot  inherit  from  former  grandparents  or 
parents,  unless  property  is  willed  to  them;  but  do  inherit  from  per- 
sons adopting  them. 

Child  Labor  Law:  Digest  prepared  by  Juvenile  Protective  Asso- 
ciation : 

No  minor  under  the  age  of  16  shall  work  unless  permitted  by  the 
Compulsory  Education  law. 

No  minor  under  18  shall  work  more  than  8  hours  daily,  nor  before 
5  a.  m.,  or  after  10  p.  m. 

In  towns  of  mere  than  15,000  boys  under  16  years  can  be  in 
messenger  service  only  in  the  day  time. 

In  cities  of  over  23,000,  no  boy  under  10  years  shall  work  nor 
girls  under  10,  shall  work. 

Minors  are  not  permitted  to  work  in  occupations  dangerous  to 
life,  limb,  health  and  morals. 

No  minor  shall  work  in  18  specified  occupations. 

Child  actors  may  perform  at  any  age  and  after  10  p.  m.  with  the 
vrritten  consent  of  the  Bureau  of  Labor  Statistics. 

In  agricultural  and  domestic  pursuits,  minors  may  work  outside 
of  school  hours  or  in  vacation. 


CITIZENS  87 


Citizens:  The  people,  as  a  political  body,  consist  of  citizens  who 
are  electors,  and  citizens  who  are  not  electors. 

Every  person  while  within  this  state  is  subject  to  its  jurisdiction 
and  entitled  to  its  protection. 

Citizens  are  all  persons  born  in  this  state  and  residing  within  it, 
except  the  children  of  transient  aliens  and  of  alien  ministers  and 
consuls:  and  all  persons  bom  out  of  this  state  who  are  citizens  ol 
the  United  States,  but  who  reside  within  this  state. 

A  citizen  of  the  United  States  who  is  not  a  citizen  of  this  state. 
has  the  same  rights  and  duties  as  a  citizen  of  this  state  who  is  not 
an  elector. 

Every  native  citizen  of  the  United  States,  every  person  who  shall 
have  acquired  the  rights  of  citizenship  under  or  by  virtue  of  the 
treaty  of  Queretaro,  and  every  naturalized  citizen  thereof,  who 
shall  have  become  such  ninety  days  prior  to  any  election,  of  the 
age  of  twenty-one  years,  who  shall  have  been  a  resident  of  the 
state  one  year  next  preceding  the  election,  and  of  the  county  in 
which  he  or  she  claims  his  or  her  vote  ninety  days,  and  in  the  elec- 
tion precinct  thirty  days,  and  who  has  conformed  to  the  law  govern- 
ing the  registration  of  voters — shall  be  a  qualified  elector  at  any 
and  all  elections  held  within  the  county,  city  and  county,  city,  town 
or  district  within  which  such  elector  resides. 

An  elector  has  no  rights  or  duties  beyond  those  of  a  citizen  not 
an  elector,  except  the  right  and  duty  of  holding  office,  and  elect- 
tion  to  office. 

The  sovereignty  of  the  state  resides  in  the  people  of  it,  and 
writs  and  processes  must  issue  in  their  name. 

The  state  has  the  following  rights  over  persons  within  its  limits, 
Ko  be  exercised  in  the  cases  and  in  the  manner  provided  by  law: 
^1)  To  punish  for  crime;  (2)  To  imprison  or  confine  for  the  pro- 
tection of  the  public  peace  or  health,  or  of  individual  life  or  safety; 
(3)  To  imprison  or  confine  for  the  purpose  of  enforcing  civil 
remedies;  (4)  To  establish  custody  and  restraint  for  the  persons 
of  idiots,  lunatics,  drunkards,  and  other  persons  of  unsound  mind; 
(5)  To  establish  custody  and  restraint  of  paupers  for  the  purpose 
of  their  maintenance;  (6)  To  establish  custody  and  restraint  of 
their  education,  reformation  and  maintenance;  (7)  To  require 
services  of  persons,  with  or  without  compensation:  In  military 
^iatv:   in   jury   duty;   as  witnesses;   as   town    or   village    officers;   in 


88  CITIZENS 


highway  labor;  in  maintaining:  the  public  peace;  in  enforcing  the 
service  of  process;  in  protecting  life  and  property  from  fire,  pesti- 
lence, wreck  and  flood;  and  in  such  other  cases  as  are  provided  by 
statute. 

Foreigners  of  the  white  race,  or  of  African  descent,  eligible  to 
become  citizens  of  the  United  States,  while  bona  fide  residents  of 
this  state,  shall  have  the  same  rights  in  respect  to  the  acquisition, 
possession,  enjoyment,  transmission  and  inheritance  of  all  property, 
other  than  real  estate,  as  native  born  citizens. 

Persons  in  this  state  not  its  citizens  are  either  citizens  of  other 
states  or  aliens. 

Citizens  shall  be  secure  in  their  persons,  homes,  papers  and 
effects,  against  unreasonable   seizure  and  searches. 

The  free  exercise  and  enjoyment  of  religious  profession  and 
worship,  without  discrimination  or  preference,  shall  forever  be 
guaranteed  in  this  state. 

Every  citizen  may  freely  speak,  write,  and  publish  his  sentiments 
on  all  subjects,  being  responsible  for  the  abuse  of  that  right;  and 
no  law  shall  be  passed  to  restrain  or  abridge  the  liberty  of  the 
press  or  of  speech.      (See  Defamation;  Syndicalism.) 

The  people  shall  have  the  right  to  freely  assemble  together  to 
consult  for  the  common  good,  to  instruct  their  representatives,  and 
to  petition  the  legislature  for  redress  of  grievances. 

All  citizens  v/ithin  the  jurisdiction  of  this  state  are  entitled  to 
the  full  and  equal  accommodations,  advantages,  facilities  and 
privileges  of  inns,  restaurants,  hotels,  eating  houses,  barber  shops, 
bath  houses,  theaters,  skating  rinks,  public  conveyances,  and  all 
other  places  of  public  accommodation  or  amusement,  subject  only 
to  the  conditions  and  limitations  established  by  law,  and  applicable 
alike  to  all  citizens. 

Whoever  denies  to  any  citizen,  except  for  reasons  applicable 
alike  to  every  race  or  color,  the  full  accommodations,  advantages, 
facilities,  and  privileges  enumerated,  or  who  aids,  or  incites,  such 
denial,  or  whoever  makes  any  discrimination,  distinction  or  re- 
striction on  account  of  color  or  race,  or  except  for  good  cause,  ap- 
plicable alike  to  citizens  of  every  color  or  race  whatsoever,  in 
respect  to  the  admission  of  any  citizen  to,  or  his  treatment  in,  any 
inn,    hotel,    restaurant,    eating    house,    barber    shop,    bath    house, 


CLAIM  AND  DELIVERY  89 


theater,  skating  rink,  public  conveyance,  or  other  public  place  of 
amusement  or  accommodation,  whether  such  place  is  licensed  or 
not,  or  whoever  aids  or  incites  such  discrimination,  distinction  or 
restriction,  for  each  and  every  such  offense  is  liable  in  damages 
in  an  amount  not  less  than  one  hundred  dollars,  which  may  be  re- 
covered in  an  action  at  law  brought  for  that  purpose. 

In  addition  to  these  rights,  every  person  has,  subject  to  the  qual- 
ifications and  restrictions  provided  by  law,  the  right:  (1)  of  pro- 
tection from  bodily  restraint;  (2)  from  personal  insult;  (3)  from 
defamation;  and,    (4)    from  injury  to  his  personal  relations. 

The  rights  of  personal  relations  forbid:  (1)  the  abduction  of 
a  husband  from  his  wife,  or  of  a  parent  from  his  child;  (2)  the 
abduction  or  incitement  of  a  wife  from  her  husband,  or  a  child 
from  a  parent,  or  from  a  guardian  entitled  to  its  custody;  (3)  the 
seduction  of  a  wife,  daughter,  orphan  sister  or  servant;  (4)  any 
injury   to   a  servant  which  affects  his   ability  to   serve   his  master. 

Claim  and  Delivery:  If  one  withholds  the  property  of  another, 
and  refuses  to  return  them,  the  owner  has  two  remedies.  He  can 
bring  an  action  in  Claim  and  Delivery  (which  is  like  the  old  com- 
mon law  action  of  Replevin),  or,  he  may  sue  for  the  value  of  the 
goods  in  Conversion;  or  he  may  sue  both  ways  if  he  finds  that  the 
defendant  has  disposed  of  the  goods,  or  lost  or  destroyed  them  in 
the   meantime. 

The  plaintiff  in  an  action  to  recover  the  possession  of  personal 
property  may,  at  the  time  of  issuing  the  summons,  or  at  any  time 
before  answer,  claim  the  delivery  of  such  property  to  him. 

Where  a  delivery  is  claimed,  an  affidavit  must  be  made  by  the 
plaintiff,  or  by  some  one  in  his  behalf,  showing  (1)  That  the  plain- 
tiff is  the  owner  of  the  property  claimed  (particularly  describing 
it),  or  is  entitled  to  the  possession  of  it;  (2)  That  the  property  is 
wrongfully  detained  by  the  defendant;  (3)  The  alleged  cause  of  the 
detention  of  it,  according  to  his  best  knowledge,  information  and 
belief;  (4)  That  it  has  not  been  taken  for  a  tax,  assessment,  or 
fine,  pursuant  to  a  statute;  or  seized,  under  an  execution  or  an  at- 
tachment against  the  property  of  the  plaintiff;  or,  if  =0  seized,  that  it 
is  by  statute  exempt  from  such  seizure;  (5)  The  actual  value  of 
the  property. 

The  Sheriff  (or  the  Constable — according  to  the  claimed  value  of 
the  property),  then  takes  possession  of  the  property,  and  holds  it 


90  COMMISSION  MERCHANT 


until  the  conclusion  of  the  case;  unless  the  defendant  does  one  of 
two  thinfTS.  He  may  either  claim  that  the  sureties  are  not  finan- 
cially responsible,  or  he  may  in  turn  give  a  bond  to  the  Sheriff  in 
double  the  claimed  value  of  the  property.  He  cannot  do  both. 
If  he  Gfives  bond,  the  Sheriff  will  return  the  proods  to  him,  but  if  he 
loses  the  case,  his  sureties  aerree  to  return  these  groods,  or  pay  the 
plaintiff  the  value  of  them.  If  he  claims  that  the  plaintiff's  sureties 
are  not  sufficient,  they  must  prove  that  they  are,  by  appearing 
before  the  Judge  or  Justice  who  issued  out  the  original  writ,  and 
testifying  under  oath  as  to  the  property  which  they  own.  If  they 
do  not  show  that  they  are  responsible  persons,  the  property  must 
be  returned  to  the  defendant  by  the  Sheriff.  If  they  do  so  qualify, 
the  Sheriff  will  keep  the  property  until  the  case  is  settled. 

If  one  can  obtain  possession  of  the  property  peaceably,  a  claim 
and  delivery  suit  will  not  be  necessary.  But  peaceably  does  not 
mean  by  breaking  into  a  house  or  obtaining  entrance  by  trickery. 
And  the  person  who  endeavors  to  secure  goods  in  this  Avay  must  be 
careful  that  he  does  not  commit  an  assault,  or  battery,  or  make  a 
false  imprisonment  by  (perhaps)  shutting  in  a  room  the  one  found 
in  possession  of  the  property.  Having  once  filed  such  a  suit,  it 
must  be  finished,  as  the  sureties  agree  that  the  action  will  be  prose- 
cuted. It  cannot  be  brought  and  then  dismissed,  after  one  has 
taken  possession  of  the  property,  as  then  the  defendant  may  file  a 
suit  against  the  sureties  for  breach  of  their  bond. 

The  ordinary  measure  of  damages  for  the  wrongful  detention  of 
property  is  interest.  But  where  property  (such  as  an  automobile,  a 
milch  cov/,  furniture,  a  buggy,  a  threshing  machine)  has  a  usable 
value  which  exceeds  the  lawful  rate  of  interest,  the  successful  party 
may  recover  the  value  of  such  use  during  the  time  he  was  deprived 
of  it — as  damages  for  its  detention.  This  value  is  to  be  estimated 
by  the  ordinary  market  price  of  the  use  of  such  property. 

Cloud  on  Title:     See  Real  Estate. 

Codicil:     See  Wills. 

Collateral  Security:     See  Negotiable  Instruments,  II3086. 

Commission  Merchants.  It  is  made  the  outy  of  every  commission 
merchant,  broker,  factor,  or  consignee,  to  whom  any  property  is  con- 
signed or  entrusted  for  sale,  to  make,  when  accounting  for  it  oi 
subsequently,  upon  the  written  aemand  of  his  principal  or  consignor, 
a  true  written  statement  setting  forth  the  name  and  address  of  the 


COMMERCIAL  FEEDING  STUFFS  91 


person  or  persons  to  whom  a  sale  of  the  said  property,  or  any  por- 
tion of  it,  was  made,  the  quantity  bo  sold  to  each  purchaser,  and  the 
respective  prices  obtained  for  it;  provided,  however,  that  unless 
separate  written  demand  shall  be  made  as  to  each  consignment  or 
shipment  regarding  which  said  statement  is  desired,  before  sale,  it 
shall  be  sufficient  to  set  forth  in  said  statement  only  so  many  of  said 
matters  above  enumerated  as  the  commission  merchant,  broker, 
factor,  or  consignee  may  be  able  to  obtain  from  the  books  of  account 
kept  by  him;  and  that  such  statement  shall  not  be  required  in  case 
of  cash  sales  where  the  amount  of  the  transaction  is  less  than  fifty 
dollars.  Any  person  violating  these  provisions  is  guilty  of  a  misde- 
meanor. 

Every  commission  merchant,  broker,  agent,  factor,  or  consignee, 
who  shall  willfully  and  corruptly  make,  or  cause  to  be  made,  to  the 
principal  or  consignor  of  such  commission  merchant,  agent,  broker, 
factor,  or  consignee,  a  false  statement  as  to  the  price  obtained  for 
any  property  consigned  or  entrusted  for  sale,  or  as  to  the  quality 
or  quantity  of  any  property  so  consigned  or  entrusted,  or  as  to  any 
expenditure  made  in  connection  with  it,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  on  conviction  of  it,  shall  be  punished  by  fine  not 
exceeding  five  hundred  dollars  and  not  less  than  two  hundred  dollars, 
or  by  imprisonment  in  the  county  jail  not  exceeding  six  months  and 
not  less  than  ten  days,  or  by  both  such  fine  and  imprisonment. 

Common  Carrier:      See  Carrier. 

Common   Law:      See  Law;  Actions. 

Complaint:     See  Action. 

Commercial    Feeding    Stuffs:     (1919    statute). 

Section  1.  The  term  "commercial  feeding  stuffs"  shall  be  held 
to  include  all  feeding  stuffs  used  for  feeding  live  stock  and  poul- 
try, except  the  following:  (a)  Whole  seeds  or  grains.  (b)  The 
unmixed  meals  made  directly  from  the  entire  grains  of  com, 
wheat,  rye,  barley,  oats,  buckwheat,  flaxseed,  kaffir,  milo  and  light 
rice;  provided,  that  light  rice  shall  be  labeled  "light  rice"  when 
ground,  (c)  Whole  hays,  straws,  cottonseed  hulls  and  corn  stover, 
when  unmixed  with  other  materials,  (d)  All  other  materials  con- 
taining sixty  per  centum  or  more  of  water. 

Sec.  2.  The  standards  for  commercial  feeding  stuffs  shall  be 
the  latest  revision  of  the  definitions  of  feeding  stuffs  adopted  by 
the  association  of  feed  control  officials  of  the  United  States. 


92  COJMMUNITY 


Sec.  3.  Every  lot  or  parcel  of  commercial  feeding  stuffs  sold, 
offered  or  exposed  for  sale  or  distributed  within  this  State  shall 
have  affixed  thereto  a  tag  or  label,  in  a  conspicuous  place  on  the 
outside  of  it,  containing  a  legible  and  plainly  printed  statement 
in  the  English  language,  clearly  and  truly  certifying  (a)  The  net 
weight  of  the  contents  of  the  package,  lot  or  parcel;  (b)  The  name 
and  principal  address  of  the  manufacturer  or  person  responsible 
for  placing  the  commodity  on  the  market;  (d)  The  minimum  per 
centum  of  crude  protein;  (e)  The  minimum  per  centum  of  crude 
fat;  (f)  The  maximum  per  centum  of  crude  fiber;  (g)  The  maxi- 
mum per  centum  of  ash;  (h)  The  specific  name  of  each  ingredient 
used  in  its  manufacture,  (i)  The  per  centum  of  such  ingredients 
as  corn  cobs,  corn  bran,  oat  hulls,  barley  bulls,  rice  hulls,  ground 
light  rice,  alfalfa  meal  or  similar  materials,  when  such  constitute 
a  portion  of  the  package,  lot  or  parcel,  (j)  In  the  case  of  poul- 
try feeds,  the  per  centum  of  grit  or  mineral  matter  they  contain. 

The  ci'ude  protein,  crude  fat,  crude  fiber  and  ash  shall  be  deter- 
mined by  the  methods  in  force  at  the  time  by  the  association  of 
official  agricultural  chemists  of  North  America. 

Sec.  4.  The  State  Board  of  Health  and  its  agents  and  inspectors 
shall  have  free  access  to  all  places  of  business,  mills,  buildings, 
carriages,  cars,  vessels  and  parcels  of  whatsoever  kind  used  in  the 
manufacture,  transportation,  importation,  sale  or  storage  of  any 
commercial  feeding  stuffs,  and  shall  have  the  power  and  authority 
to  open  any  parcel  containing  or  supposed  to  contain  any  commer- 
cial feeding  stuffs,  and  upon  tender  and  full  payment  of  the  selling 
price  of  the  said  sample,  to  take  therefrom  samples  for  analysis. 
The  methods  of  analysis  shall  be  those  in  force  at  the  time  by  the 
association  of  official  agricultural  chemists  of  North  America. 

Sec.  5.  Commercial  feeding  stuffs  shall  be  deemed  adulterated 
if  they  do  not  conform  to  the  analysis  declared  on  the  label  or 
tag. 

Sec.  6.  Commercial  feeding  stuffs  shall  be  deemed  mislabeled 
if  they  are  not  labeled  or  tagged  in  accordance  with  the  provisions 
of  section  three. 

Community  Property:  See  Husband  and  Wife;  Landlord  and 
Tenant;  Wills;  Succession. 

Composition  with   Creditors:      See   Bankruptcy. 


CONSIGNMENTS  9:^ 


Compromise,  Offer  of,  Before  Trial:  See  Tender;  Deposit  in 
Court;  Action. 

If  the  defendant,  at  any  time  before  the  trial,  offers,  in  writing, 
to  allow  judgment  to  be  taken  ag:ainst  him  for  a  specified  sum,  the 
plaintiff  may  immediately  have  judgment  therefor,  with  the  costs 
then  accrued;  but  if  he  does  not  accept  such  offer  before  the  trial, 
and  fails  to  recover  in  the  action  a  sum  in  excess  of  the  offer,  he 
cannot  recover  costs  incurred  after  the  offer,  but  costs  must  be 
adjudged  against  him,  and,  if  he  recovers,  be  deducted  from  bis 
recovery.  The  offer  and  failure  to  accept  it  cannot  be  given  in 
evidence  nor  affect  the  recovery,  otherwise  than  as  to  costs. 

Concealment:     See  Insurance. 

Conditional  Sales:      See   Real  Estate. 

Condition  Precedent:      See  Real  Estate. 

Conditions   Subsequent:      See  Real  Estate. 

Consideration:      See  Contracts,  ^S. 

Consignee:     See  Carriers;  Bill  of  Lading. 

Consignments:  Is  intended  to  be  a  loan  for  sale  of  personal 
property.  See  Loans,  Pledg?,  Deposit,  Storage,  Bailments.  No 
title  is  intended  to  be  passed  until  the  articles  have  been  sold  by 
the  consignee,  and  yet  if  the  party  to  whom  the  goods  are  consigned, 
should  in  his  turn  pledge  these  goods,  and  leave  the  state  v/ith  the 
money — the  consignor  v;ould  be  compelled  to  pay  the  amount  of  the 
pledge  to  the  pledgee,  upon  the  legal  proposition  that  having  clothed 
a  person  with  apparent  authority  and  dominion  over  goods,  he  can- 
not complain  with  what  is  done  vath  them. 

One  does  not  pass  title  to  consigned  goods  by  sending  a  statement 
each  month  showing  the  amount  of  goods  thus  consigned  then  in 
possession  of  consignee,  and  showing  also  t'.ie  amount  of  former 
goods  thus  sent  him,  and  payments  made  for  them.  See  Installment 
Sales.  It  is  better  business  to  use  a  special  form  of  bill  heads,  or 
memorandum  statement,  containing  a  clause,  "These  goods  are  on 
consignment  or  memorandum,  and  not  sold.  The  title  to  them  shall 
not  pass  until  paid  for  by  the  consignee."  It  would  be  better  still 
to  cause  the  consignee  to  sign  a  special  contract,  in  v/hich  he  v/ould 
agree  precisely  under  what  conditions  the  goods  were  sent  and 
received,  how  long  they  were  to  remain  in  his  possession,  how  and 
where  and  at  what  price  they  Avere  to  be  paid  for,  at  whose  expense 
they  would  be  shipped,  insured  and  returned. 


94  CONTRACTS 


Consignor:     See  Carriers;  Bill  of  Lading. 

Contracts:  See  Bottomry;  Respondentia  Contracts;  Independent 
Contractor;  Monopolies;  Statute  of  Frauds;  Liquidated  Damages; 
Good  Will;  Sales;  Partnership;  Limitations;  Alteration  (1)  Defini- 
tion; (2)  Parties  to  the  Contract;  (3)  Consent;  (4)  Offer;  (5) 
Acceptance;  (6)  Revokation;  (7)  Object;  (8)  Consideration;  (9) 
Void  Contracts;  (10)  Executory  and  Executed;  (11)  Express  and 
Implied;  (12)  Delivery;  (13)  Seals;  (14)  Interpretation;  (15) 
Termination;   (16)   Alteration;   (17)   Destruction  or  Cancelation. 

A  contract  is  an  agreement  to  do  or  not  to  do  a  certain  thing. 

In  order  that  a  contract  should  exist,  there  should  be  (a)  parties 
to  it  who  are  capable  of  contracting — see  1[2;  (b)  the  consent  of 
these  parties — see  ^3;  (c)  a  lawful  object — see  117;  and  (d)  a  suffi- 
cient cause,  or  consideration — see  IfS. 

All  persons  are  capable  of  contracting — except  minors,  persons 
of  unsound  mind,  and  persons  deprived  of  civil  rights. 

There  can  be  no  fictitious  persons  to  a  contract;  the  parties 
should  not  only  exist — as  living  persons,  or  persons  who  have  an 
existence  because  of  law  (such  as  corporations,  partnerships,  etc.), 
but  the  persons  must  also  be  possible  of  identification. 

A  contract,  which  has  been  made  expressly  for  the  benefit  of  a 
third  person,  may  be  enforced  by  him  at  any  time  before  the  par- 
ties to  it  rescind  it.     See  Rescission. 

Consent  of  parties  to  a  contract  must  be  (a)  free,  and  (b)  mu- 
tual, and  (c)  communicated  by  each  to  the  other. 

If  the  consent  is  not  free,  it  is  not  absolutely  void,  but  may  be 
rescinded  by  the  parties.     See  Rescission. 

If  consent  is  obtained  through  Duress,  Menace,  Fraud,  Undue  In- 
fluence, or  Mistake,  it  is  not  free  nor  real,  even  though  it  may  seem 
to  be.     See  Duress;  Fraud;  Undue  Influence;  Mistake. 

Consent  is  not  mutual  unless  the  parties  all  agree  upon  the  same 
thing  in  the  same  sense.  But  in  certain  cases,  they  are  presumed 
to  do  so. 

Consent  can  be  communicated  vnth  effect,  only  by  some  act  or 
omission  of  the  contracting  party — by  which  he  intends  to  commu- 
nicate it,  or  which  necessarily  tends  to  such  communication. 

If  a  proposal  prescribes  any  conditions  concerning  the  communi- 
cation of  its  acceptance,  the  proposer  is  not  bound  unless  the  con- 
ditions are   conformed  to;  but  in   other  cases,   any  reasonable   and 


CONTRACTS  *» 


usual  mode  may  be  adopted.  (That  is,  if  the  proposer  viTites  that 
the  acceptance  must  be  in  writing,  or  by  telegraph,  or  by  letter,  or 
by  a  certain  day,  he  cannot  be  held  by  bis  proposition,  unless  the 
acceptance  is  sent  precisely  as  he  says  it  shall  be.) 

Consent  is  deemed  to  be  fully  communicated  between  the  parties 
as  soon  as  the  party  accepting  a  proposition  has  put  his  proposal 
in  the  course  of  transmission  to  the  proposer,  provided,  of  course, 
that  he  conforms  to  the  terms  of  the  proposal.  (For  example,  an 
acceptance  sent  by  mail  takes  effect  as  of  the  time  it  was  mailed,  and 
not  as  of  the  time  it  was  received.) 

An  acceptance  of  a  proposal,  or  of  the  consideration  offered  in  a 
proposal,  may  be  given  by  performance  of  its  conditions. 

(For  instance,  if  a  reward  is  offered,  any  one  performing  the  act 
for  which  the  reward  is  to  be  given,  may  claim  it.) 

An  acceptance  must  be  absolute  and  unqualified,  or  must  include 
in  itself  an  acceptance  of  that  character  which  the  proposer  can 
separate  from  the  rest  and  which  will  conclude  the  party  accepting. 
A  qualified  acceptance  is  a  new  proposal.  (That  is,  if  you  offer 
to  sell  a  horse  to  a  man  for  $100,  and  he  says  that  he  will  give  you 
$90,  and  a  buggy  (even  though  the  buggy  is  worth  more  than  ten 
dollars),  this  will  not  be  an  acceptance  of  his,  but  would  be  a  new 
proposition   from  him   to  you,  which  you  could  accept  or  reject. 

A  proposal  to  accept,  or  acceptance  of,  an  offer,  on  terms  varying 
from  those  proposed,  is  a  rejection  of  the  offer  and  puts  an  end  to 
it. 

One  who  submits  a  counter  proposition  instead  of  accepting  an 
offer  cannot  abandon  the  substitute  and  accept  the  original  offer 
without  the  other  party's  consent. 

If  a  person  voluntarily  accepts  the  benefits  of  a  transaction,  this 
is  just  the  same  as  if  he  had  consented  to  all  the  obligations  which 
arose  from  such  transaction — that  is,  as  far  as  the  facts  are  known, 
or  as  far  as  they  ought  to  be  known — to  the  party  thus  accepting. 

Where  services  are  rendered  by  one  person,  and  another  derives 
a  benefit  from  such  services — and  when  there  is  no  agreement  to 
pay  for  the  services — yet  the  law  will  presume  that  the  person  who 
enjoyed  the  benefit  of  the  services  is  bound  to  pay  what  they  are 
reasonably  worth.  (See  Limitations;  Statute  of  Frauds.) 


96  CONTRACTS 


Where  there  is  a  contract  (either  express  or  implied)  for  an  in- 
definite time,  with  no  time  for  payment  specified — the  statute  of 
limitations  does  not  begin  to  run  until  the  services  end.  (See  Statute 
Frauds.) 

Revokation:  A  proposal  may  be  revoked  at  any  time  before  its 
acceptance  is  communicated  to  the  proposer,  but  cannot  afterward. 

A  proposal  is  revoked  in  one  of  the  following  four  ways:  (a)  By 
the  communication  of  notice  of  revocation  by  the  proposer  to  the 
other  party,  as  described,  before  his  acceptance  has  been 
communicated  to  the  proposer;  (b)  by  the  lapse  of  time 
prescribed  in  such  proposal  for  its  acceptance;  or,  if  no  time  is 
prescribed,  then  a  reasonable  time  without  communication  of  the 
acceptance.  See  Reasonable,  (c)  3y  the  failure  of  the  acceptor 
to  fulfill  a  condition  precedent  to  acceptance.  See  Conditions 
Precedent.     (4)  By  the  death  or  insanity  of  the  proposer. 

A  contract  which  is  voidable  solely  because  due  consent  has  not 
been  given,  may  be  ratified  by  later  consent.     See  Ratification. 

OBJECT:  The  object  of  a  contract  is  the  thing  which  is  agreed 
upon  to  be  done,  or  not  to  be  done,  upon  the  part  of  the  party  re- 
ceiving the  consideration. 

The  object  of  a  contract  must  be  lawful  where  the  contract  is 
made,  and  it  must  be  possible  and  ascertainable  by  the  time  such 
contract  is  to  be  performed. 

Unless  a  contract  is  impossible  in  the  nature  of  things,  everything 
is  deemed  to  be  possible. 

Contract  to  pay  upon  the  happening  of  some  future  event — which 
is  in  the  control  of  the  promisee 

Consideration:  See  Real  Estate;  Negotiable  Instruments,  TI3105, 
3106,   3108,   3136. 

Consideration:  The  following  are  known  as  "good  considerations," 
when  either  (a)  or  (b)  is  an  inducement  to  the  promisor;  (a)  any 
benefit  conferred — or  agreed  to  be  conferred — upon  the  promissor, 
by  any  other  person,  to  which  benefit  the  promissor  is  not  lawfully 
entitled  (b)  any  prejudice  suffered  (or  agreed  to  be  suifered)  by 
such  promissor — except  such  as  he  is  lawfully  bound  to  suffer  at  the 
time  of  consent;  also  (c)  an  existing  legal  obligation  resting  upon 
the  promissor,  or  a  moral  obligation  originating  in  some  benefit  con- 
ferred upon  the  promissor,  or  pi'ejudice  suffered  by  the  promisee, 


CONTRACTS  97 


to  an  extent  correspondincr  wnih  the  extent  of  the  ohlicration.  hut 
no  further  or  otherwise. 

A  written  instrument  is  presumptive  evidence  of  a  consideration. 

The  burden  of  sho^vinp:  a  want  of  consideration  sufficient  to  sup- 
port an  instrument  li(\s  with  the  party  seeking  to  invalidate  or 
avoid  it. 

When  a  contract  does  not  determine  the  amount  of  the  considera- 
tion, nor  the  method  by  which  it  is  to  be  ascertained,  or  when  it 
leaves  the  amount  of  it  to  the  discretion  of  an  interested  party,  the 
consideration  must  be  so  much  money  as  the  object  of  the  contract 
is  reasonably  worth. 

The  true  consideration  'for  any  written  instrument  can  always 
be  shown;  (as,  where  a  receipt  or  deed  reads  "for  ten  dollars," 
when  two  hundred  dollars  was  paid,  the  Court  will  permit  testimony 
as  to  the  true  amount).     See  Accord  and  Satisfaction;  Release. 

The  consideration  of  a  contract  must  be  lawful. 

That  is  not  lawful  M'hich  is:  (1)  Contrary  to  an  express  provision 
of  law;  (2)  Contrary  to  the  policy  of  express  law,  though  not  ex- 
pressly prohibited;  or,   (3)    Otherwise  contrary  to  good  morals. 

The  law  will  not  aid  either  party  to  an  illegal  contract.  It 
leaves  the  parties  where  it  finds  them.  Neither  a  court  of  law,  nor 
a  court  of  equity,  will  aid  the  one  in  enforcing  it,  or  give  damages 
for  breach  of  it,  or  set  it  aside  at  the  suit  of  the  other;  or  lend  its 
aid  to  recover  money  back — if  the  agreement  has  been  carried  out 
in  whole  or  in  part  by  the  payment  of  money,  or  the  transfer  of 
other  property. 

The  separation  of  the  good  consideration  from  that  which  is  illegal 
will  not  be  made  where  the  party  seeking  to  enforce  the  contract 
is  himself  the  one  who  made  and  breached  the  illegal  consideration. 

If  there  are  several  considerations  for  one  promise,  some  of 
which  are  legal  and  others  illegal,  the  promise  is  wholly  void,  as  it 
is  impossible  to  say  which  one  of  the  considerations  induced  the 
promise. 

Where  a  contract  has  several  distinct  objects,  of  which  one  at 
least  is  lawful,  and  one  of  the  objects  is  unlawful — in  whole  or  in 
part — the  contract  is  void  as  to  the  unlawful  portion  and  valid  as  to 
the  rest. 

Where  a  contract  has  but  a  single  object,  and  such  object  is  (1) 
unlawful    (whether  in  whole  or  in  part),  or   (2)   wholly  impossible 


98  CONTRACTS 


of  performance,  or  (3)  so  vaguely  expressed  as  to  be  wholly  un- 
ascertainable — the    entire   contract   is   void. 

If  any  part  of  a  single  consideration  for  one  or  more  objects,  or 
several  considerations  for  a  single  object,  is  unlawful,  the  entire 
contract  is  void. 

Where  a  contract  provides  an  exclusive  method  which  by  its 
consideration  is  to  be  ascertained,  which  method  is  on  its  face  im- 
possible of  execution,  the  entire  contract  is  void. 

Where  a  contract  provides  an  exclusive  method  by  which  its  con- 
sideration is  to  be  ascertained,  which  method  appears  possible  on 
its  face,  but  in  fact  is,  or  becomes,  impossible  of  execution,  such 
provisions  only  are  void. 

All  contracts  which  have  for  their  object,  directly  or  indirectly, 
to  exempt  any  one  from  responsibility  for  his  own  fraud,  or  wilful 
injury  to  the  person  or  property  of  another,  or  violation  of  law, 
whether  wilful  or  negligent,  are  against  the  policy  of  the  law. 

The  following  kinds  of  contracts  are  void:  A  note  given  for  a 
gambling  debt;  making  a  settlement  because  of  threat  of  arrest; 
an  agreement  to  file  on  a  homestead  for  a  partnership;  or  to  let 
houses  for  prostitution. 

Every  contract  by  which  the  amount  of  damages  to  be  paid,  or 
other  compensation  to  be  made,  for  a  breach  of  an  obligation,  is 
determined  in  anticipation  thereof,  is  to  that  extent  void,  except 
under  certain  conditions.      (See  Liquidated  Damages.) 

Every  contract  by  which  any  one  is  restrained  from  exercising 
a  lawful  profession,  trade  or  business  of  any  kind,  except  as  is  pro- 
vided, is  to  that  extent  void. 

Every  contract  in  restraint  of  the  marriage  of  any  person,  other 
than  a  minor,  is  void. 

Any  consideration  may  be  executed  or  executory,  in  whole  or  in 
part.  An  executed  contract  is  one  the  object  of  which  is  fully  per- 
formed.    All  others  are  executory. 

When  a  consideration  is  executory,  it  is  not  indispensable  that 
the  contract  should  specify  its  amount  or  the  means  of  ascertaining 
it.  It  may  be  left  to  the  decision  of  a  third  person,  or  regulated  by 
any  specified  standard. 

KINDS  OF  CONTRACTS:    A  contract  is  either  express  or  implied. 

An    express   contract   is   one    the    terms    of   which   are    stated    in 


CONTRACTS  99 


words.  An  implied  contract  is  piftt^'exlSt'ence  and  term's 'o^^/ln  ■3^ 
are  manifested  by  contract.  ',•,'■  '  '■',• 

All  contracts  may  be  orj'l,  except  such  as  are  specially  required 
by  statute  to  be  in  writiAj^.V  See  Statute  of  Frauds^-    T    V.'  '■ 

Where  a  contract,  wliipT?  is  required  Sy  law' io".  b'a  'inAViitmg,  is 
prevented  from  being  put  intio  writiji^V  by  the'  fraud  of  a  party 
to  it,  any  other  party  who  is  b'y  such  fraud  led  to  believe  that  it 
is  in  writing,  and  acts  upon  such  belief  to  his  prejudice,  may  enforce 
it  against  the  fraudulent  party. 

DELIVERY:  A  contract  in  writing  takes  effect  upon  its  delivery 
to  the  party  in  whose  favor  it  is  made,  or  to  his  agent. 

The  provision  of  the  chapter  on  transfers  in  general,  concerning 
the  delivery  of  grants,  absolute  and  conditional,  apply  to  written 
contracts.      (See  Real  Estate.) 

A  corporate  or  official  seal  may  be  affixed  to  an  instrument  by  a 
mere  impression  upon  the  paper  or  other  material  on  which  instru- 
ment is  written,  but  all  distinctions  between  sealed  and  unsealed 
instruments  are  abolished. 

INTERPRETATION:  The  execution  of  a  contract  in  writing, 
whether  the  law  requires  it  to  be  written  or  not,  supersedes  all  the 
negotiations  or  stipulation  concerning  its  matter  which  preceded  or 
accompanied  the  execution  of  the  instrument. 

All  contracts,  whether  public  or  private,  are  to  be  interpreted  by 
the  same  rules,  except  as  otherwise  provided. 

A  contract  must  be  also  interpreted  as  to  give  effect  to  the  mutual 
intention  of  the  parties  as  it  existed  at  the  time  of  contracting,  so 
far  as  the  same  is  ascertainable  and  lawful. 

The  language  of  a  contract  is  to  govern  its  interpretation,  if  the 
language  is  clear  and  explicit,  and  does  not  involve  an  absurdity. 

When  a  contract  is  reduced  to  writing,  the  intention  of  the  par- 
ties is  to  be  ascertained  from  the  writing  alone,  if  possible;  subject, 
however,  to  the  other  provisions  of  this  chapter. 

When  through  fraud,  mistake,  or  accident,  a  written  contract 
fails  to  express  the  real  intention  of  the  parties,  such  intention  is 
to  be  regarded,  and  the  erroneous  parts  of  the  writing  disregarded. 

The  whole  of  a  contract  is  to  be  taken  together,  so  as  to  give 
effect  to  every  part,  if  reasonably  practicable,  each  clause  helping 
to  interpret  the  other. 

Several  contracts  relating  to  the  same  matters,  between  the  same 


100  CONTilACTS 


parties,  and  made  as-  pftrts  ^f  vaubstantially  one  transction,  are  to 
be  Is  ken  together. 

A  contract  must  receive  such  an  inicrjiretation  as  will  make  it 
lawful,,  operative,  definite,  reasonable,  and  capable  of  being  carried 
into  etfect,.  if  itcan  be  done  without  violating  the  intention  of  th« 
parties.  '. . 

The  words  of  a  contract  are  to  be  understood  in  their  ordinary  and 
popular  sense,  rather  than  according  to  their  strict  legal  meaning; 
unless  used  by  the  parties  in  a  technical  sense,  or  unless  a  special 
meaning  is  given  to  them  by  usage,  in  which  care  the  latter  must  be 
followed. 

Technical  words  are  to  be  interpreted  as  usually  understood  by 
persons  in  profession  or  business  to  which  they  relate,  unless  clearly 
used  in  a  different  sense. 

A  contract  is  to  be  interpreted  according  to  the  law  and  usage  of 
the  place  where  it  is  to  be  performed;  or,  if  it  does  not  indicate  a 
place  of  performance,  then  according  to  the  law  and  usage  of  the 
place  where  it  is  made. 

A  contract  may  be  explained  by  reference  to  the  circumstances 
under  which  it  was  made,  and  the  matter  to  which  it  relates. 

However  broad  may  be  the  terms  of  a  contract,  it  extends  only 
to  those  things  concerning  which  it  appears  that  the  parties  intend 
to  contract. 

If  the  terms  of  a  promise  are  in  any  respect  ambiguous  or  uncer- 
tain, it  must  be  interpreted  in  the  sense  in  which  the  promissor 
believed,  at  the  time  of  making  it,  that  the  promissee  understood  it. 

Particular  clauses  of  a  contract  are  subordinate  to  its  general 
intent. 

Where  a  contract  is  partly  written  and  partly  printed,  or  where 
part  of  it  is  written  or  printed  under  the  special  directions  of  the 
parties,  and  with  a  special  view  to  their  intention,  and  the  remain- 
der is  copied  from  a  form  originally  prepared  without  special  refer- 
ence to  the  particular  parties  and  the  particular  contract  in  ques- 
tion, the  written  parts  control  the  printed  parts,  and  the  parts  which 
are  purely  original  control  those  which  are  copied  from  the  form. 
And  if  the  two  are  absolutely  repugnant,  the  latter  must  be  so  far 
disregarded. 

Repugnancy  in  a  contract  must  be  reconciled,  if  possible,  by  such 
an  interpretation  as  will  give  some  effect  to  the  repugnant  clauses, 


CONTRACTS  101 


subordinate   to   the   general   intent  and   purpose   of  the  whole   con- 
tract. 

Words  in  a  contract  which  are  wholly  inconsistent  with  its  nature, 
or  with  the  main  intention  of  the  parties,  are  to  be  rejected. 

In  cases  of  uncertainty  not  removed  by  the  preceding  rules,  the 
language  of  a  contract  should  be  interpreted  most  strongly 
against  the  party  who  caused  the  uncertainty  to  exist.  The  prom- 
issor  is  presumed  to  be  such  party;  except  in  a  contract  between  a 
public  officer  (or  body,  as  such),  and  a  private  party,  in  which 
case  it  is  presumed  that  all  uncertainty  was  caused  by  the  private 
party. 

Stipulations  which  are  necessary  to  make  a  contract  reasonable, 
or  conformable  to  usage,  are  implied,  in  respect  to  matters  concern- 
ing which  the  contract  manifests  no  contrary  intention. 

All  things  that  in  law  or  usage  are  considered  as  incidental  to  a 
contract,  or  as  necessary  to  carry  it  into  effect,  are  implied  from  it, 
unless  some  of  them  are  expressly  mentioned  in  it;  in  such  case,  all 
other  things  of  the  same  class  are  deemed  to  be  excluded. 

If  no  time  is  specified  for  the  performance  of  an  act  required  to 
be  performed,  a  reasonable  time  is  allowed.  If  the  act  is  in  its 
nature  capable  of  being  done  instantly — as,  for  example,  if  it  con- 
sists in  the  payment  of  money  only— it  must  be  performed  immedi- 
ately upon  the  thing  to  be  done  being  exactly  ascertained.  (See 
Reasonable.) 

When  all  the  parties  who  unite  in  a  promise  receive  some  benefit 
from  the  consideration,  whether  past  or  present,  their  promise  is 
presumed  to  be  joint  and  several. 

A  promise,  made  in  the  singular  number,  but  executed  by  several 
persons,-  is  presumed  to  be  joint  and  several. 

A  contract  may  be  extinguished  in  like  manner  with  any  other 
obligation,  and  also  in  the  manner  prescribed  by  this  article. 

A  contract  is  extinguished  by  its  rescission.     See  Rescission. 

A  contract  not  in  writing  may  be  altered  in  any  respect  by  con- 
sent of  the  parties,  in  writing,  without  a  new  consideration,  and  is 
extinguished  thereby  to  the  extent  of  the  new  alteration.  A  con- 
tract in  writing  may  be  altered  by  a  contract  in  writing,  or  by  an 
executed  oral  agreement,  and  not  otherwise.  An  executed  con- 
tract is  one  the  terms  of  which  have  been  fully  performed. 

The  destruction  or  cancellation  of  a  written  contract,  or  of  the 


102  CONVERSION 


signature  of  the  parties  liable  thereon,  with  intent  to  extinguish 
the  obligation  of  it,  extinguishes  it  as  to  all  the  parties  consenting 
to  the  act.  The  intentional  destruction,  cancellation  or  material 
alteration  of  a  written  contract,  by  a  party  entitled  to  any  benefit 
under  it,  or  with  his  consent,  extinguishes  all  the  executory  obli- 
gations of  the  contract  in  his  favor,  against  parties  who  do  not  con- 
sent to  the  act.  Where  a  contract  is  executed  in  duplicate,  an  alter- 
ation or  destruction  of  one  copy,  while  the  other  exists,  is  not 
within  the  provisions  of  the  last  section.  If  one  party  to  a  contract 
has  destroyed  the  subject  matter,  or  disables  himself  so  as  to  make 
performance  impossible — his  conduct  is  the  same  as  if  he  broke  the 
contract,  although  the  time  for  performance  has  not  then  arrived. 

Contributory  Negligence:  See  Accident;  Last  Clear  Chance;  Neg- 
ligence. If  Mr.  A.  sues  Mr.  B.,  claiming  that  it  was  through  the  neg- 
ligence of  Mr.  B.  that  some  injury  was  done  to  Mr.  A. — when  in 
reality,  the  injury  was  caused  by  Mr.  A.'s  own  carelessness — this 
is  contributory  negligence  on  the  part  of  Mr.  A. — and  he  will  have 
judgment  rendered  against  him. 

Conversion:  See  Claim  and  Delivery;  Accession;  Bill  of  Lading, 
2130C.;  Warehouse  Receipts,  13;  Damages. 

Consists  in  the  exercise  of  acts  of  domain  over  the  movables 
(personal  property)  of  another;  it  differs  from  Trespass  in  that 
it  concerns  ownership,  while  trespass  is  the  unlawful  taking  or 
interruption  of  possession,  irrespective  of  ownership.  Conversion 
is  in  two  forms:  (1  when  the  wrongdoer  appropriates  to  him- 
self the  goods  of  another,  and  (2)  when  he  does  not  so  ap- 
propriate the  goods,  but  nevertheless  deprives  the  owner  of  them 
of  their  use — by  an  act  of  ownership.  (See  Larceny,  Embezzle- 
ment, Claim  and  Delivery).  But  the  simple  act  of  meddling 
with  another's  propertj%  where  there  is  no  intent  to  claim 
title  to  it — is  not  sufficient.  (See  Automobiles.)  The  refusal 
to  deliver  personal  property  on  demand,  to  the  owner,  is  con- 
version, although  demand  is  not  always  necessary  to  show  the  intent 
of  the  one  holding  the  possession.  A  refusal  to  transfer  shares  of 
stock  in  a  corporation  would  be  conversion,  as  would  also  the  refusal 
of  an  officer  to  redeliver  property  wrongfully  held.  The  amount 
of  damages  is  the  market  value  of  the  property,  with  legal  interest 
from  the  time.  If  the  conversion  was  wrongful,  then  exemplary 
damages  may  also  be  collected,  but  no  attorney's  fees. 


CORPORATIONS  103 


CoHveyance:     See  Real  Estate. 

Corporations:  See  Liens;  Negotiable  Instruments,  113103;  Con- 
version. A  corporation  may  be  formed  by  three  or  more  liv- 
ing persons,  a  majority  of  whom  must  be  residents  of  this  State, 
and  all  of  whom  must  sign  the  articles  of  incorporation  before  a 
notary  or  other  similar  official.  These  articles  of  incorporation 
recite  (first)  the  name  of  the  corporation;  (second)  the  place  where 
it  is  intended  to  carry  on  its  principal  business;  (third)  the  term 
for  which  it  is  intended  to  carry  on  such  business  (which  shall  not 
be  longer  than  fifty  years,  in  any  case)  ;  (fourth)  the  number  of 
its  directors  (which  shall  not  be  in  any  case  less  than  three;  (fifth) 
the  names  and  residences  of  those  who  are  appointed  as  such  direct- 
ors to  serve  for  the  first  year;  (sixth)  the  amount  of  its  authorized 
capital  stock,  and  the  number  of  shares;  (seventh)  the  names  of 
the  persons  who  have  subscribed  to  the  stock,  and  the  amount  which 
each  has  subscribed;  (eighth)  the  purposes  for  which  the  corpora- 
tion is  formed.  This  last  is  the  most  important,  and  should  be  care- 
fully drawn  by  an  attorney  of  experience,  because  a  corporation  is 
limited  in  its  future  business  transactions  to  what  its  charter  (which 
is  its  articles  of  incorporation  certified  to  by  the  Secretary  of 
State)  permits  it  to  do,  and  it  may  get  into  serious  legal  entangle- 
ments if  it  carries  on  a  business  which  was  not  authorized.  When 
these  articles  have  been  written  to  the  satisfaction  of  the  attorney 
for  the  proposed  corporation,  or  its  incorporators,  the  original  copy 
is  filed  with  the  county  clerk  of  the  county  where  the  principal  place 
of  business  is  to  be  carried  on,  and  a  copy  of  it  (certified  to  by 
this  county  clerk)  is  forwarded  to  the  Secretary  of  State  at  Sacra- 
mento, together  with  the  necessary  fees  (which  vary  from  $10.00  up, 
according  to  the  amount  of  the  capital  stock)  and  with  the  amount 
of  taxes  for  the  first  year.  If  the  name  chosen  by  the  incorpora- 
tors does  not  conflict  with  a  name  being  used  by  any  other  corpora- 
tion in  this  State,  and  if  the  purposes  are  properly  drawn,  and  if 
the  proper  amount  of  money  has  been  sent,  the  Secretary  of  State 
will  thereupon  issue  a  charter,  the  original  of  which  should  be  filed 
in  the  office  of  the  county  clerk  where  the  original  articles  are  filed. 
The  corporation  is  then  ready  to  carry  on  its  business.  Frequently 
a  corporation  is  organized  for  the  purpose  of  taking  over,  or  buy- 
ing out  some  business  which  has  been  conducted  by  one  person,  or  a 
partnership.      (For  the   method   of   transfer   of   such   business,    see 


104  CORPORATIONS 


Sales  and  Bulk  Law.)  Within  thirty  days  from  the  time  the  char- 
ter is  issued,  the  incorporators  must  meet  and  adopt  a  set  of  by- 
laws which  govern  the  conduct  of  the  business  in  the  future.  At 
this  meeting,  or  some  later  meeting,  the  officers  of  the  corporation 
will  also  be  elected,  consisting  of  a  President,  Vice  President,  Sec- 
retary and  Treasurer.  The  President,  Vice  President  and  Treas- 
urer must  also  be  directors  and  stockholders;  the  Secretary  may 
be  either  or  both,  but  need  not  be  either,  and  may  be  either  ap- 
pointed or  elected.  These  by-laws  will  also  provide  the  duties  of 
these  various  officers,  and  their  limitations.  At  some  meeting  of 
this  Board  of  Directors  a  resolution  will  be  passed  as  to  taking  over 
the  former  business  for  a  certain  number  of  shares  of  the  capital 
stock  of  the  corporation,  or  for  the  sale  of  the  stock  in  some  man- 
ner, or  for  issue  of  stock  for  a  patent  right  or  real  estate,  or  a 
lease,  an  option,  or  such  other  property  as  the  Board  of  Directors 
may  determine  to  be  for  the  best  interests  of  the  business  of  the 
corporation.  But  no  shares  can  be  issued  by  any  corporation  (either 
domestic  or  foreign)  unless  such  corporation  has  received  a  permit 
from  the  Commissioner  of  Corporations  of  this  State.  See  Blue 
Sky  Law. 

STOCKHOLDERS'  LIABILITY:  California  has  more  protection 
for  the  creditors  of  a  corporation  than  any  other  State  in  the  Union. 
Creditors  may  look  for  payment  to  the  corporation,  to  its  assets  and 
to  the  stockholders,  also,  who  are  responsible  at  the  following  times 
and  manner.  First,  for  the  difference  between  the  par  value  of  the 
stock  and  the  amount  paid  for  it,  that  is,  if  he  paid  ten  cents  a  share 
for  the  stock  the  par  value  of  which  is  one  dollar,  he  would  have  to 
pay  the  other  ninety  cents;  Second,  for  such  proportion  of  the  debts 
of  the  corporation,  as  his  stock  bears  to  the  total  issued  and  out- 
standing shares;  that  is,  if  he  owns  one  thousand  shares  out  of  a 
total  issue  of  twenty  thousand,  he  must  pay  one-twentieth  of  the 
debts  of  the  corporation,  if  they  were  incurred  during  the  time  he 
owned  the  stock.  But  a  recent  law  has  provided  that  corporations 
may  be  formed  with  the  liability  of  the  stockholder  limited  to  the 
amount  of  stock  which  he  owns,  and  not  in  the  proportion  described. 
Third:  Corporation  directors  have  the  right  to  levy  assessments 
to  obtain  money  for  debts  due,  and  for  money  to  carry  on  or  extend 
business.  No  such  levy  must  be  of  more  than  ten  cents  a  share,  and 
none  must  be  levied  if  a  former  is  still  unpaid.     If  the  stockholder 


CORPORATIONS  105 


does  not  pay  the  assessment  when  called  for,  the  corporation 
has  the  right  to  sell  his  shares  at  public  auction  to  the  highest  bid- 
der, for  cash,  or  to  bid  them  in  itself;  or  it  may  sue  him  for  the 
amount  of  the  assessment  and  not  sell  his  shares.  If  the  corpora- 
tion buys  in  the  shares,  it  has  the  right  to  sell  them  again  to  any 
other  person  for  any  sum  decided  by  the  Board  of  Directors.  But 
corporations  can  be  organized  with  their  stock  issue  nonassessable. 

There  are  special  laws  for  the  following  classes  of  corporations: 
Agricultural  fair,  banking,  bridge,  board  of  trade,  benevolent,  cem- 
etery, colleges,  co-operative  business,  chamber  of  commerce,  chute, 
ferry,  homestead,  insurance  (including  accident  assessment,  annu- 
ity, endowment,  fraternal,  fire,  life,  livestock,  marine,  mutual 
benefit,  mortgage,  title)  ;  land  and  building,  mechanics  institutes, 
loan,  mining,  fire,  prevention  of  cruelty  to  children  and  animals, 
railway,  religious,  social,  savings  and  loan,  seminaries  of  learning, 
street  railway,  telegraph  and  telephone,  water  and  canal,  wharf, 
wagon  road. 

A  corporation  may  change  its  name,  or  its  principal  place  of  busi- 
ness, or  its  purposes,  or  the  preference  of  its  stock  issue,  or  its  term 
of  existence  (but  not  over  fifty  years  altogether)  ;  increase  or  de- 
crease the  number  of  members  on  its  Board  of  Directors  (but  never 
less  than  three) ;  increase  or  decrease  the  amount  of  its  capital 
stock  (but  never  to  less  than  its  indebtedness)  ;  or  create  a  bonded 
indebtedness  (which  must  be  less  than  its  capital  stock)  ;  amend  its 
bylaws  or  articles  of  incorporation,  dissolve  after  all  its  debts  are 
paid  (and  then  may  distribute  its  assets  to  its  stockholders)  ;  acquire 
real  property,  but  only  enough  necessary  to  carry  on  its  business. 
A  corporation  must  file  certified  copies  of  its  articles  of  incorporation 
in  every  county  in  this  State  where  it  does  business  or  holds  prop- 
erty; adopt  by-laws  within  thirty  days  after  its  charter  is  signed; 
elect  directors  annually;  furnish  financial  statement  to  each  stock- 
holder at  least  one  week  before  the  annual  meeting. 

DIRECTORS  must  organize  and  elect  officers  immediately  after 
their  election;  hold  their  meetings  at  the  office  or  principal  place 
of  business  of  the  corporation;  a  majority  must  be  residents  of  the 
State,  and  all  must  be  stockholders;  Directors  must  not  pay  divi- 
dends except  from  surplus  profits;  make  entries,  reports,  public 
notice — which  are  false  in  any  material  representation. 

A  STOCKHOLDER  has  the  right  to  vote  at  the  annual  meeting 


106  COSTS 


(or  special  meeting  of  stockholders)  ;  either  in  person  or  by  proxy; 
to  inspect  the  books,  and  papers  of  the  corporation  at  any  reasonable 
time,  provided  he  has  no  motive  to  injure  the  corporation  in  so 
doing;  to  inspect  the  mine  (if  it  is  a  mining  corporation).  In  vot- 
ing, he  may  cumulate  his  vote;  that  is,  if  there  are  five  directors 
to  be  elected,  and  he  owns  1000  shares,  he  may  vote  five  thousand 
shares  for  any  one  director,  and  none  for  any  others. 

FOREIGN  CORPORATIONS  may  not  maintain  an  office  or  do 
business  in  this  state  upon  any  more  favorable  terms  than  may  a 
domestic  corporation.  A  foreign  corporation  must  pay  the  same 
filing  fees  and  annual  tax  as  does  a  domestic,  and  in  addition  must 
also  pay  a  fee  of  |75  for  the  privilege  of  filing  a  certified  copy  of 
its  articles  of  incorporation.  It  is  amenable  to  the  Blue  Sky  Law, 
to  the  stockholders'  liability,  mining  and  assessment  laws. 

Costs:  See  Action;  Deposit  in  Court.  The  winning  party  in  a 
law  suit  is  entitled  to  judgment  for  the  court  costs  which  he  has 
expenses,  or  made  himself  liable  for  (See  Tender;  Deposit  in  Court), 
or  unless — in  the  Superior  Court — the  amount  of  the  judgment  is 
less  than  $300,  except  when  in  cases  appealed  from  the  Justices' 
Court. 

The  person  who  begins  the  action  must  pay  the  court  costs  in  ad- 
vance; in  the  Justices'  Court — two  dollars  when  the  complaint  is 
filed,  and  three  dollars  for  hearing  on  demurrer,  or  for  trial  fee,  if 
no  demurrer  is  filed — but  if  demurrer  fee  is  paid,  this  also  serves  as 
trial  fee.  There  is  also  the  charge  for  service  of  summons,  being 
fifty  cents  and  mileage  for  each  person  served;  service  of  subpoena, 
the  same  charge;  and  constable  fees,  if  an  attachment  is  levied. 

In  the  Superior  Court  the  filing  fee  is  six  dollars;  two  dollars 
for  hearing  on  demurrer,  or  any  motion,  or  setting  for  trial.  There 
are  no  further  charges,  unless  jury  is  requested — except  service  of 
process  and  Sheriff's  charges.  If  Jury  is  requested,  the  party 
desiring  it  must  deposit  with  the  Clerk  of  the  Court  at  the  time  of 
such  request,  the  sum  of  two  dollars  per  day  for  each  juror,  and 
the  reporter's  fee  of  five  dollars.  At  the  trial  of  the  case,  if  a 
.shorthand  reporter  is  desired,  his  charge  is  ten  dollars  per  day,  one- 
half  to  be  paid  by  each  side.  A  reporter  is  seldom  asked  for  in  the 
Justices'  Court,  unless  it  is  expected  that  the  case  wjll  be  appealed, 
and  that  evidence  taken  will  be  needed  in  the  Superior  Court  trial. 

If  the   case   is  decided   in  favor  of  the  plaintiff,   these   costs  are 


COURTS  107 


added  to  the  amount  of  the  judgment,  and  the  defendant  then  has 
to  pay  them.  If  the  case  is  decided  in  favor  of  the  defendant,  he 
is  entitled  to  such  costs  as  he  may  have  obligated  himself  to  pay, 
such  as  charges  for  service  of  papers,  witness  fees  and  mileage. 

If  a  person  will  make  an  affidavit  that  he  is  an  absolute  pauper, 
and  has  no  money,  nor  any  means  of  gaining  any,  he  is  entitled  to 
have  all  the  processes  of  the  court  issued  at  no  charge,  even  to  jury 
fee. 

Courts:  California  laws  have  provided  for  six  different  courts: 
The  Recorder's  Court,  the  Police  Court,  the  Justice's  Court,  the 
Superior  Court,  the  Appellate  Court  and  the  Supreme  Court.  In 
addition  to  these,  the  United  States  Circuit  Court  holds  sessions  in 
various  cities  of  this  state. 

The  procedure  in  each  of  these  courts  differs,  and  no  attempt 
will  be  made  in  this  book  to  discuss  the  procedure  in  detail — only 
such  as  will  be  enough  to  show  the  differences  and  make  the  pro- 
ceedings clear.  The  many  details  of  technicalities  should  be  left 
to  the  knowledge  of  your  lawyer. 

The  RECORDER  is  appointed  by  a  Mayor  or  the  Board  of  Trus- 
tees and  has  the  same  powers  as  a  Police  Justice  and  (civilly)  as  a 
Justice  of  the  Peace,  provided  the  matters  sued  upon  occurred 
within  the  boundaries  of  his  city. 

The  POLICE  JUSTICE  is  an  elective  office.  This  court  tries 
cases  for  violation  of  any  city  ordinance,  and  actions  for  collec- 
tion of  city  licenses. 

The  JUSTICES'  or  TOWNSHIP  COURTS  try  cases  on  bonds  and 
undertakings;  enter  judgment  by  confession;  foreclose  chattel 
mortgages;  on  contract;  on  claim  and  delivery;  for  injury  to  per- 
sons or  property,  and  injury  to  real  property — all  when  the  amount 
claimed  does  not  amount  to  $300.00,  exclusive  of  interest.  Also 
try  cases  in  unlawful  detainer  when  the  amount  of  rent  is  not  over 
$25,  but  the  damages  may  be  any  amount.  The  Justice  also  tries 
cases  for  violation  of  a  state  law,  when  less  than  a  felony,  and 
conducts  the  preliminary  examination  of  persons  accused  of  fel- 
onies, deciding  whether  or  not  such  persons  are  to  be  tried  by  a 
jury. 

The  SUPERIOR  COURTS  try  the  following  cases:  Insolvency; 
probate;  divorce,  or  annulment;  equity;  nuisance;  forcible  entry; 
unlawful  detainer,  when  the  monthly  rent  is  over  $25.00,  and  the 


108  CREDIT 


damaijes  are  over  $200.00;  all  actions  involving  title  or  possession 
of  real  property,  or  loprality  of  tax,  impost,  assessment,  toll  or 
municipal  fine;  civil  actions  not  capable  of  pecuniary  estimation; 
all  other  actions  in  which  the  demand  is  $300.00,  or  more,  ex- 
clusive of  interest;  writs  of  mandamus,  review,  prohibition,  quo 
warranto,  habeas  corpus.  They  act  as  the  court  of  appeal  from 
judgments  of  the  Recorders',   Police  and  Justices'  Courts. 

The  DISTRICT  COURTS  (known  as  Appellate  Courts)  consider 
all  cases  sent  to  it  by  the  Supreme  Court,  and  may  issue  the  same 
v/rits  as  the  Supreme  Court;  they  hear  and  decide  cases  on  appeal 
from  Superior  Court  in  which  the  demand  is  $300.00  to  $2000.00, 
and  cases  of  insolvency  or  to  abate  nuisance,  as  well  as  forcible 
entry  and  detainer  (except  those  arising  in  Justices'  Courts).  In 
case  a  decision  of  this  court  is  not  satisfactory  to  one  side  of  a 
controversy,  a  motion  for  rehearing  may  be  made,  addressed  to 
the  Supreme  Court.     But  this  decision  is  final. 

The  SUPREME  COURT  consists  of  Six  Justices,  elective.  It 
hears  and  decides  matters  on  appeal  from  Superior  Court  and  re- 
views decisions  of  Appellate  Courts.  It  may  issue  writs  of  man- 
damus, prohibition,  quo  warranto,  review  and  habeas  corpus. 

Covenants:     See  Real  Estate,  116. 

Credit:     See  Checks. 

Any  person  who  shall  knowingly  make  or  cause  to  be  made  (either 
directly  or  indirectly,  or  through  any  agency  whatsoever),  any  false 
statement  in  writing,  with  intent  that  it  shall  be  relied  upon,  re- 
specting the  financial  condition,  or  means  of  ability  to  pay,  of  him- 
self, or  any  other  person,  firm  or  corporation,  in  whom  he  is  inter- 
ested, or  for  whom  he  is  acting,  for  the  purpose  of  procuring  in  any 
form  whatsoever,  either  the  delivery  of  personal  property,  the  pay- 
ment of  cash,  the  making  of  a  loan  or  credit,  the  extension  of  a 
credit,  the  discount  of  an  account  receivable,  or  the  making,  accept- 
ance, discount,  sale  or  indorsement  of  a  bill  of  exchange,  or  prom- 
issory note,  for  the  benefit  of  himself  or  of  such  person,  finn  or  cor- 
poration; or 

Whoever  procures  either  of  the  benefits  or  things  mentioned  in 
the  preceding  paragraph  (for  the  benefit  of  himself,  or  of  such  firni, 
person  or  corporation),  knowing  that  such  a  false  statement  in 
writing  has  been  made  concerning  the  financial  condition  or  means 


DAMAGES  109 


or  ability  to  pay,   of  himself,   or  of  such  person,  firm   or  corpora- 
tion; or 

Whoever  represents  on  a  later  day,  that  such  statement  formerly 
made  (if  then  made  on  such  day)  would  be  then  true — when  in  fact 
such  statement  would  be  then  false — and  procures  upon  the  faith  of 
it  (for  the  benefit  of  himself  or  of  such  person,  firm  or  corporation) 
either  of  the  thing:s  of  benefit  described  in  the  first  paragraph,  when 
he  knows  that  a  statement  in  writing  has  been  made,  concerning  the 
financial  condition  or  means  or  ability  to  pay  of  himself  or  such 
person,  firm  or  corporation — 

Shall  be  guilty  of  a  misdemeanor. 

Creditors:  See  Sales;  Frauds;  Assignment;  Bankruptcy;  Bulk 
Law;  Actions;  Transfers;  Limitations;  Attachment;  Warranty; 
Guaranty. 

Crops:  See  Water  Law;  (Mutual  Company);  Damages;  Landlord 
and  Tenant;  Attachment;  Real  Estate. 

Crops:  The  general  rule  is  that  products  of  the  earth,  which 
are  annual,  raised  by  yearly  manurance  and  labor,  owing  to  their 
annual  existence  to  cultivation  by  man,  are  commonly  called  emble- 
ments, and  are  personal  propei'ty.  In  California,  these  include  gar- 
den vegetables  and  fruits  of  trees  and  vines.  See  Liens;  Mortgages; 
Chattel  Mortgage;  Real  Estate;  Water.  Where  the  tenancy  is  of 
uncertain  duration,  and  is  terminated  while  the  crops  are  growing, 
through  no  fault  of  the  tenant,  he  has  the  right  to  harvest  and  re- 
move the  crops  (This  case  seems  to  be  as  near  as  the  California 
courts  have  gone,  but  the  law  undoubtedly  is  that  when  a  tenant  has 
planted  a  crop,  he  will  be  permitted  to  harvest  it  and  remove  it — 
unless  mortgaged). 

Cross-Complaint:      See  Actions. 

Damages:     See  Measure  of  Damages;  Liquidated  Damages. 

Damages  is  the  amount  of  money  which  is  considered  by  the  law 
to  recompense  a  person  for  the  loss  or  injury  which  he  has  suffered. 
The  amount  is  called  the  "measure  of  damages." 

The  value  to  the  buyer  or  owner  of  property,  when  deprived  of 
its  possession,  is  deemed  to  be  the  price  at  which  he  might  have 
bought  an  equivalent  thing  in  the  market  nearest  the  place  where 
the  property  ought  to  have  been  put  into  his  possession — and  at 
such  time  after  the  breach  of  duty  upon  which  his  right  is  founded, 


110  DAMAGES 


as  would  suffice  for  him  to  make  such  a  purchase,  acting  with  reason- 
able diligence. 

If  a  person  is  deprived  of  personal  property  which  has  a  peculiar 
value,  he  may  recover  that  value  for  its  injury  or  for  being  deprived 
of  it,  from  one  who  had  notice  of  it,  or  from  a  v/ilful  wrongdoer. 

The  value  of  an  instrument  in  writing  is  presumed  to  be  that  of 
the  property  to  which  it  entitles  its  owner — for  the  purpose  of  fix- 
ing the  amount  of  damage. 

The  damages  for  conversion  of  personal  property  is  (1)  the  value 
of  the  property  at  the  time  of  the  conversion,  with  the  interest  from 
that  time;  or — where  the  action  has  been  prosecuted  with  reasonable 
diligence — then  the  highest  market  value  of  the  property  at  any 
time  between  the  conversion  and  the  verdict,  without  interest,  at 
the' option  of  the  injured  party;  and  (2)  a  fair  compensation  in  time 
and  money  properly  expended  in  pursuit  of  the  property. 

If  a  seller  fails  to  deliver  personal  property  which  he  has  agreed 
to  deliver,  and  if  the  price  of  it  has  not  been  fully  paid  in  advance 
— the  buyer  is  entitled  to  recover  the  value  of  the  property  to  him, 
©ver  and  above  the  amount  which  would  be  due  to  the  seller  under 
the  contract — if  it  had  been  carried  out. 

If  a  buyer  fails  to  accept  and  pay  for  personal  property,  and  the 
title  is  vested  in  him,  the  damage  caused  is  the  amount  of  the  con- 
tract price. 

If  the  title  is  not  vested  in  the  buyer,  and  he  does  not  accept  and 
pay  for  personal  property  which  he  has  agreed  to  accept  and  pay 
for — then  the  property  should  be  sold  under  the  lien  law  (which  see), 
and  the  damage  is  the  difference  between  the  amount  thus  received 
and  the  contract  price;  but  if  not  sold  under  the  lien  law,  then  the 
damage  is  the  difference  between  the  amount  due  from  the  buyer, 
over  and  above  the  value  to  the  seller — and  plus  the  excess  of  ex- 
penses in  carrying  it  to  market,  over  the  amount  which  would  have 
been  incurred  for  its  carriage  if  the  buyer  had  accepted  it. 

The  value  of  property  to  a  seller  of  it  is  deemed  to  be  the  price 
which  he  could  have  obtained  for  it  in  the  market  nearest  to  the 
place  at  which  it  should  have  been  accepted  by  the  buyer — and  at 
such  time  after  the  breach  of  the  contract  as  would  have  sufficed  for 
the  seller  to  effect  a  resale,  acting  with  reasonable  diligence. 

No  damages  can  be  recovered  for  a  breach  of  contract,  if  they 
are  not  clearly  ascertainable  both  in  their  nature  and  origin. 


DEEDS  111 


Where  a  breach  of  duty  has  caused  no  noticeable  injury  to  the 
party  affected,  he  may  yet  recover  nominal  damages. 

In  all  cases  damages  must  be  reasonable,  and  where  an  obligation 
of  any  kind  appears  to  create  an  unscionable  and  grossly  oppressive 
damage,  which  may  be  contrary  to  substantial  justice — no  more 
than  reasonable  damages  can  be  recovered. 

Damages  for  a  breach  of  an  obligation  to  pay  money  only,  is  the 
amount  which  is  due  by  the  terms  of  the  obligation,  with  interest 
on  it. 

The  jury  decides  the  amount  of  damages  for  seduction,  for  per- 
sonal injuries,  for  malicious  prosecution,  for  false  arrest,  for  breach 
of  promise. 

If  a  seller  fails  to  deliver  personal  property,  when  the  price  has 
been  fully  paid  to  him  in  advance,  the  damages  are  the  same  as  in 
case  of  wrongful  conversion. 

Date:     See  Negotiable  Instruments,  3093,  3092. 

Days  of  Grace:  See  Negotiable  Instruments,  113166,  3217;  Bill 
of  Lading.  In  some  states  three  days  are  allowed  for  payment  of  a 
negotiable  instrument,  after  its  due  date.  California  has  no  such 
rule. 

Deeds:  There  are  ten  forms  of  deeds  used  in  this  State,  namely: 
(1)  Quit  Claim;  (2)  Gift;  (3)  Survivorship;  (4)  Defeasance;  (5) 
Sheriff's;  (6)  Tax;  (7)  Trust;  (8)  Corporate;  (9)  Grant;  (10) 
Warranty. 

1.  QUIT  CLAIM  DEED:  This  form  of  deed  is  used  to  clear 
away  some  cloud  upon  a  title.  As,  for  example,  when  some  remote 
heir  to  property  might  claim  a  very  small  interest  in  it,  or  when  a 
husband  desires  to  pass  title  of  his  community  interest  to  his  wife, 
or  in  any  other  case  where  the  person  conveying  has  a  very  small 
and  unknown  claim  or  interest  in  the  property.  A  person  may 
make  a  quit  claim  deed  to  any  property  in  the  world,  whether  he 
has  or  claims  to  have  any  interest  in  it  or  not;  by  doing  so  he 
does  not  in  any  manner  imply  that  he  has  any  interest  in  the  prop- 
erty, past,  present  or  future.  The  person  who  takes  such  a  deed, 
accepts  it  with  the  risk  that  he  is  acquiring  nothing. 

The  following  phrases,  when  contained  in  a  deed,  pass  whatever 
title  the  grantor  had  at  the  time  of  executing  the  deed:  "Demise, 
release  and  quit-claim;"  hath  and  does  hereby  forever  release  and 
forever  quit-claim;"  "all  my  right,  title  and  interest." 


112  DEP]DS 


GIFT  DEED:  The  wording  of  a  gift  deed  is  usually  as  follows: 
"In   consideration   of   the   love   and   affection   which  I    bear   to   and 

have  for ,  I  hereby  give  to  her   (him)    all  that  real 

property  situated  ,"  etc.,  the  balance  being  as  in  the 

customary  grant  deed. 

DEFEASANCE:  Sometimes  one  man  e:<;ecutes  and  delivers  a 
deed  of  property  to  another,  saying,  "Keep  this  as  security  for  the 
loan,  and  return  it  to  me  when  I  pay  you" — or  words  of  the  same 
effect — showing  that  the  deed  was  not  intended  to  pass  the  title 
forever,  but  was  only  given  as  security.  Such  a  deed  is  called  a 
deed  of  DEFEASANCE,  and  it  must  be  foreclosed  the  same  as  if  it 
were  a  mortgage,  no  matter  what  its  wording  may  be.  This  deed 
should  be  recorded,  the  same  as  any  other,  so  as  to  notify  any 
other  persons  who  may  have  an  interest  in  the  property. 

SURVIVORSHIP  OR  JOINT  TENANCY  DEED:  The  peculiar 
feature  of  this  form  of  deed  is  the  right  of  survivorship.  That  is, 
where  property  is  conveyed  to  two  or  more  persons  as  joint  tenants, 
each  holds  an  equal  share,  with  equal  rights  in  all  respects,  and 
upon  the  death  of  one  joint  tenant  the  estate  passes  at  once  in  its 
entirety  to  the  survivors  without  probate  and  finally  to  the  last 
survivor,  and  not  to  the  heirs  or  representatives  of  the  deceased. 
This  form  of  deed  is  quite  frequently  used  in  conveying  property 
to  husband  and  wife,  where  each  spouse  desires  the  other  to  be 
sole  heir.  The  wording  is:  "Grant  to  and  (insert- 
ing in  these  blank  spaces  the  names  of  the  parties)  and  to  the 
survivor  of  them." 

A  SHERIFF'S  DEED  is  one  given  by  the  Sheriff  to  the  pur- 
chaser at  a  foreclosure  sale,  or  other  sale  under  execution.  It 
transfers  all  the  title  which  judgment  debtor  had  in  the  property 
sold  at  the  time  of  the  levy  of  the  execution — but  no  after  ac- 
quired title. 

TAX  DEED:  A  deed  from  the  tax  collector  duly  acknowledged 
or  proved  is  (against  actual  fraud)  conclusive  evidence  of  the 
regularity  of  all  other  proceedings,  from  the  assessment  by  the 
assessor  inclusive,  up  to  the  execution  of  the  deed.  Such  deed 
conveys  to  the  State  the  absolute  title  to  the  property  described 
therein,  free  of  all  incumbrances — except  any  lien  of  taxes  levied 
for  municipal  purposes,  and  except  when  the  land  is  owned  by  the 
United    States   or    in    this    State,    in   v/hich    case    it    is    prima    facie 


DEEDS  113 


evidence  of  the  right  of  possession,  accrued  as  of  the  date  of  the 
deed  to  the  State. 

But  if  there  have  been  any  technical  irregularity  in  the  pro- 
ceedings up  to  the  time  of  the  sale,  the  buyer  may  find  himself 
holding  nothing  but  a  piece  of  paper,  provided  an  action  to  QUIET 
TITLE  is  filed  against  him,  and  he  cannot  prove  all  the  necessary 
facts.  The  business  of  buying  tax  and  assessment  titles  is  a  very 
dangerous   one. 

CORPORATION  DEED:  The  customary  form  is  similar  to  a 
grant  deed,  except  that  it  should  contain  a  clause  showing  that  the 
persons  w^ho  sign  the  deed  on  behalf  of  the  corporation,  have  the 
right  to  do  so,  either  by  resolution  of  the  Board  of  Directors,  or 
some  other  way.  Just  because  persons  are  officers  in  a  corporation, 
they  do  not  have  the  right  to  deed  its  property,  without  authority. 

GRANT  DEED  is  the  one  customarily  used  in  transfer  of  prop- 
erty in  this  State.  When  the  word  "grant"  is  used  in  any  convey- 
ance by  which  an  estate  of  inheritance  or  fee  simple  is  to  be 
passed,  the  folloAving  covenants,  and  none  other,  on  the  part  of 
the  grantor  (for  himself  and  his  heirs)  to  the  grantee  (his  heirs 
and  assigns)  are  implied,  unless  restrained  by  express  terms  con- 
tained in  such  conveyance  (See  Restrictions,  Reservations  and  Con- 
ditions, under  Real   Property)  : 

(1)  That  previous  to  the  time  of  the  execution  of  such  convey- 
ance, the  grantor  has  not  conveyed  the  same  estate,  or  any  right, 
title  or  interest  in  it,  to  any  person  other  than  the  grantee;  (2) 
That  such  estate  is  at  the  time  of  the  execution  of  such  conveyance 
free  from  incumbrances  done,  made  or  suffered  by  the  grantor,  or 
by  any  other  person  claiming  under  him — such  covenants  may  be 
sued  upon  in  the  same  manner  as  if  they  had  been  expressly  in- 
serted in  the  conveyance.  (See  Incumbrances,  Liens,  Conditions 
and   Covenants.) 

Such  a  deed  also  carries  the  after  acquired  title;  but  it  does  not 
retroact  so  as  to  give  the  buyer  a  right  to  bring  an  action  for  past 
illegal  use  of  water,  when  the  land  borders  a  stream. 

BARGAIN  AND  SALE  DEED:  Is  merely  a  form  of  the  grant 
deed.  The  additional  words  "bargain,  sell  and  convey"  being  used 
in  it  operate  not  merely  to  release,  but  to  transfer  any  interest 
which  the  grantor  has  in  the  land  at  the  time  of  the  date  of  the 
deed. 


114  DEEDS 


WARRANTY  DEED:  This  form  is  not  used  in  this  State  for 
the  reason  that  the  covenant  of  warranty  is  implied  by  law  in 
the  use  of  the  word  "grant"  in  the  grant  deed.  A  warranty,  how- 
ever, undertakes  upon  the  failure  of  the  title  to  pay  compensation 
in  money  for  the  loss  thus  sustained;  this  would  equal  the  pur- 
chase price,  with  interest  at  the  legal  rate  computed  to  the  date  of 
eviction.    (See  Warranty.) 

A  TRUST  DEED  is  a  conveyance,  made  for  the  purpose  of  se- 
curing a  debt.  It  differs  from  defeasance,  in  that  the  grantee  is 
some  third  person,  who  holds  the  legal  title  to  the  property,  as 
Trustee,  and  is  not  made  directly  to  the  person  to  whom  the  debt 
is  owed.  It  differs  from  the  mortgage,  in  that  there  is  no  right  of 
redemption,  and  no  action  at  law  is  necessary  to  "foreclose" — as 
it  is  called,  although  there  is  no  "foreclosure,"  as  that  term  is 
known  in  law.  If  the  debt  is  not  paid  when  due,  upon  demand, 
the  trustee  must  sell  the  property  (as  will  be  explained  later),  and 
his  deed  passes  title  at  once  to  the  buyer.  A  trust  deed  does  not 
operate  either  as  a  lien  or  an  incumbi-ance,  for  one  cannot  have  an 
interest   in   real   property,   and    a   lien    upon    it   at   the    same    time. 

If  the  Trustee  will  not  sell,  when  requested  to  do  so,  the  Court 
will  do  so  for  him.  If  a  trust  deed  is  made  upon  land  when  there 
are  grov/ing  crops  on  it,  and  a  chattel  mortgage  is  afterward  made 
upon  these  crops,  the  buyer  at  a  sale  under  the  trust  deed  will 
also  secure  title  to  the  crops,  free  of  the  chattel  mortgage. 

Its  validity  has  been  frequently  upheld  by  our  Supreme  Court, 
one  case  saying:  "Trust  Deeds,  to  secure  payment  of  a  debt,  are 
an  anomaly  in  our  system,  and  are  admittedly  inconsistent  with 
the  policy  of  this  State  in  regard  to  mortgages.  It  is  at  least 
doubtful  if  they  would  be  now  sustained  but  for  a  line  of  decisions 
made  before  they  were  very  seriously  questioned." 

Strictly  speaking,  there  is  no  "foreclosure,"  yet  this  is  the  term 
used  when  the  trustee  is  given  notice  to  sell,  and  does  sell.  In 
1917  the  Legislature  passed  an  act  by  which  the  debtor  in  a  trust 
deed  is  given  some  few  rights  which  he  never  possessed  before. 
Formerly  it  was  only  necessary  to  advertise  the  time  and  place  of 
sale  in  "some  newspaper  of  general  circulation  published  in  the 
county  where  the  real  property  is  situated."  At  present,  a  notice 
of  the  breach  of  the  conditions  of  the  deed,  and  of  the  intention 
of  the  trustee  to  sell,  must  be  recorded  in  the  office  of  the  county 


DEEDS  115 


recorder  of  the  county  where  the  property  is  located;  then  three 
months  shall  elapse  (during  which  time  the  debtor,  of  course, 
could  save  his  property  by  payinjr  what  was  due,  with  the  costs 
added) ;  then  the  trustee  must  give  an  additional  notice  of  the  time 
and  place  of  sale,  the  same  as  under  execution.  (See  Execution.) 
After  the  sale  is  made,  the  debt  may  not  be  satisfied.  The  creditor 
has  the  right  to  bid  the  property  in  for  any  reasonable  sum — even 
it  may  be  less  than  the  amount  of  the  debt,  and  if  he  receives  less 
than  the  full  amount  at  the  sale,  he  has  the  right  to  sue  the 
debtor  for  the  difference — and  can  collect  it,  if  the  debtor  has 
the  money. 

DELIVERY:  A  grant  takes  effect  so  as  to  vest  the  interest  in- 
tended   to    be    transferred    only    upon    its    delivery    to    the    grantor. 

A  grant  cannot  be  delivered  to  the  grantee  conditionally.  De- 
livery to  him,  or  his  agent  as  such,  is  absolutely  necessary,  and 
the  instrument  takes  effect  thereupon,  discharged  of  any  condition 
on  which  the  delivery  was  made. 

A  grant  duly  executed  is  presumed  to  have  been  delivered  at 
its   date. 

Though  a  grant  be  not  actually  delivered  into  the  possession  of 
the  grantee,  yet  it  is  to  be  presumed  constructively  delivered  in 
the  following  cases:  (1)  When  the  instrument  is  by  the  agree- 
ment of  the  parties  at  the  time  of  its  execution  understood  to  be 
delivered,  and  under  such  circumstances  that  the  grantee  is  entitled 
to  immediate  delivery;  (2)  Where  it  is  delivered  to  a  stranger  for 
the  benefit  of  the  grantee,  and  his  assent  is  shown,  or  may  be 
presumed. 

Delivery  depends  upon  the  intention  of  both  grantor  and  grantee. 
No  precise  words  nor  character  of  acts,  are  necessary,  but  the 
grantor  must  show  that  it  is  his  intention  to  part  with  the  title 
for  all  time. 

But  delivery  of  itself  may  not  always  pass  title,  as  it  might  be 
shown  that  the  paper  was  delivered  for  another  purpose,  or  the 
grantee  might  run  away  with  it,  or  obtain  possession  of  it  wrong- 
fully, or  by  false  pretenses.  If  a  man  was  drunk  and  thought  the 
deed  was  a  letter,  or  a  deed  was  delivered  by  some  one  who  did 
not  understand  what  his  act  meant — the   deed  would   be   voidable. 

A   husband    executed    a   deed   to   property   to    his   wife,    but    she 


116  DEEDS 


died  before  she  recorded  it,  and  he  found  it  and  destroyed  it. 
This  was  a  good  delivery,  and  title  passed. 

In  another  case  a  husband  and  wife  each  deeded  their  property 
to  the  other,  and  then  exchanged  deeds,  intending  to  have  either 
deed  recorded  when  either  party  should  die.  This  was  not  a  good 
delivery.      (See  Escrow.) 

POSSESSION:  Possession  or  the  right  to  possession  must  be 
given  to  the  grantee  at  the  time  of  delivery  of  the  deed. 

The  acts  of  dominion  and  ownership  over  land  which  may  be 
sufficient  to  constitute  an  actual  possession  vary  according  to  the 
condition,  size  and  locality  of  the  tract,  usually  evidenced  by  oc- 
cupation, by  a  substantial  enclosure,  by  cultivation,  by  appropriate 
use. 

Possession  of  a  river  bed  is  sufficiently  evidenced  by  clearing  and 
cultivating  suitable  parts  thereof,  pasturing  on  parts  upon  which 
grass  and  clover  grow,  taking  and  selling  gravel,  selling  timber  and 
logs  lodged  by  winter  floods,  renting  portions  and  the  enclosure  of 
the    entire    tract   by   fences    and    barriers   sufficient    to    turn    stock. 

"Possession  of  lot  given  and  guaranteed  to  purchaser  on  transfer 
of  title."  Such  possession  means  physical  possession  and  unless  so 
delivered  the  purchaser  need  not  be  called  upon  to  complete  his 
payments. 

If  there  are  tenants  on  the  property,  delivery  could  not  be  made 
unless  the  grantee  was  willing  to  accept  the  tenants.  When  one  is 
in  possession  of  land  it  is  presumed  that  he  is  rightfully  and  law- 
fully there. 

SIGNATURES:  Witnesses  are  not  required  in  this  State,  and 
the  necessity  for  a  seal  has  been  abolished.  Even  the  word  "seal" 
or  a  scroll  or  the  attaching  of  a  wafer  to  the  paper  is  not  neces- 
sary— as  it  is  in  some  other  states.  No  special  form  of  signature 
is  necessary,  as  long  as  it  shows  that  the  grantor  desired  it  to  be 
his  act.  If  the  grantor  cannot  v,'rite  and  another  guides  his  hand 
while  he  makes  his  signature  it  is  good.  Or  if  his  signature  is 
made  by  another  person  at  his  request  and  in  his  presence.  Sev- 
eral persons,  in  addition  to  the  grantor,  may  sign  a  deed,  but  do 
not  convey  any  of  their  right  in  the  property,  even  whei'e  a  hus- 
band signs  with  his  wife  on  a  deed  conveying  title  to  his  wife's 
separate  property.  If  the  grantor  owns  the  land  he  may  sign  his 
own  or  any  other  name,  and  it  will  pass  the  title  as  between  him 


DEFAMATION  11^ 


and  the  grantee.  If  his  true  name  is  in  the  body  of  the  deed  and 
he  si^ns  any  other  name,  but  acknov/ledges  the  deed  by  his  true 
name,  he  passes  title. 

Defamation  is  effected  by   (1)   slander  or   (2)   libel. 

Slander  is  false  and  malicious  defamation  by  word  of  mouth 
which  charges  any  person  with  crime,  or  punishment  for  crime;  or 
imputes  in  him  the  present  existence  of  an  infectious,  contagious 
or  loathsome  disease;  or  tends  directly  to  injure  him  in  respect  to 
his  office,  profession,  trade,  or  business,  either  by  imputing  to  him 
general  disqualifications  in  those  respects  which  the  oflice  or  other 
occupation  peculiarly  requires,  or  by  imputing  something  with 
reference  to  his  trade,  profession,  office  or  business  tliat  has  a 
natural  tendency  to  lessen  the  profits;  or  imputes  to  him  impo- 
tence, or  a  want  of  chastity;  or  which  by  natural  consequence, 
causes  actual  damage. 

Libel  is  a  false  and  unprivileged  publication  which  exposes  any 
person  to  hatred,  contempt,  ridicule  or  obloquy,  or  which  causes 
him  to  be  shunned  or  avoided,  or  which  has  a  tendency  to  injure 
him  in  his  business.  The  following  expressions  have  been  decided 
by  our  courts  to  be  libelous:  "You  are  a  thief;"  "she  is  tricky  and 
unreliable  and  destitute  of  honorable  or  womanly  characteristics;" 
"he  sold  out  the  support  of  his  paper  to  a  certain  corporation  for 
money;"  "she  is  the  paramour  of  a  man  not  her  husband;"  "he 
set  fire  to  a  wood  yard,  in  which  a  warehouse  was  located;" 
claiming  that  one  attorney  is  in  collusion  \vith  another;  aflinity; 
hypocrite. 

To  constitute  libel,  there  must  be  malice  (which  see),  actual  or 
implied,  on  the  part  of  the  publisher. 

1.  In  an  action  for  libel  or  slander  the  clerk  shall,  before  issu- 
ing the  ^5ummons,  require  a  written  undertaking  on  the  part  of  the 
plaintiff  in  the  sum  of  five  hundred  (500)  dollars,  with  at  least  two 
competent  and  sufficient  sureties,  specifying  their  occupations  and 
residences,  to  the  effect  that  if  the  action  be  dismissed  or  the  de- 
fendant recover  judgment,  that  they  will  pay  such  costs  and 
charges  as  may  be  av/arded  against  the  plaintiff  by  judgment,  or 
in  the  progress  of  the  action,  or  on  appeal,  not  exceeding  the  sum 
specified  in  the  undertaking.  An  action  brought  without  filing  the 
undertaking  shall  be  dismissed. 

2.  Each   of   the   sureties   on   the   undertaking   mentioned    in    the 


118  DEPOSIT 


first  section  shall  annex  to  the  same  an  affidavit  that  he  is  a  resi- 
dent and  householder  or  freeholder  within  the  county,  and  is  worth 
double  the  amount  specified  in  the  undertaking  over  and  above  all 
his  just  debts  and  liabilities,  exclusive  of  property  exempt  from 
execution. 

Defeasance:     See  Deeds. 

Defect:     See  Negotiable  Instruments,  1I313G,  3137. 

Defenses:      See  Negotiable  Instruments,  TI3138,  3139. 

Deficiency  Judgments:  See  Mortgage;  Chattel  Mortgage;  Trust 
Deed;  Installment  Sales. 

Delivery:     See  Deeds;  Real  Estate;  Sales. 

Delivery:  See  Contracts;  Depository;  Negotiable  Instruments, 
113007,   3111,  3115,  3148. 

Demand:  See  Action;  Personal  Injuries;  Negotiable  Instruments, 
113088,  3152,  3256a. 

Demand  is  not  necessary  before  filing  an  action  (as  is  usually 
believed),  unless,  the  cause  of  action  depended  on  it.  The  filing 
of  the  suit  is  sufficient. 

Demurrer:     See  Action. 

Depose  is  every  mode  of  written  statement  under  oath  or  affirma- 
tion. 

Depositor:      See  Deposits,  112. 

Deposit  of  Personal  Property:  See  Storage;  Liens;  Warehouse- 
man; Findings;  Pledge;  Warehouse  Receipts. 

1.  A  DEPOSIT  may  be  voluntary  or  (2)  involuntary;  and  for 
safe  keeping  or  exchange. 

2.  A  voluntary  deposit  is  made  by  one  giving  to  another, 
with  his  consent,  the  possession  of  personal  property  to  keep  for 
the  benefit  of  the  giver,  or  of  a  third  person.  The  person  giving 
is  called  the  depositor,  and  the  person  receiving  is  called  the  deposi- 
tary. 

3.  An  involuntary  deposit  is  made  (1)  by  the  accidental  leav- 
ing or  placing  of  personal  property  in  the  possession  of  any  person, 
without  negligence  on  the  part  of  the  owner  of  the  thing;  or  (2) 
in  cases  of  fire,  shipwreck,  inundation,  insurrection,  riot,  or  like 
extraordinary  emergencies,  by  the  owner  of  personal  property, 
committing  it  to  the  care  of  any  person  by  reason  of  this  necessity. 


DEPOSIT  119 


4.  A  person  with  whom  a  thing  is  deposited  in  such  manner,  is 
bound  to  take  charge  of  it,  if  able  to  do  so. 

5.  A  deposit  for  keeping  is  where  the  depository  is  bound  to 
return  the  identical  thing  deposited. 

6.  A  depository  for  exchange  is  one  in  which  the  depositary  is 
only  bound  to  return  the  thing  corresponding  in  value  or  in  kind  to 
that  which  is  deposited. 

7.  A  depository  must  deliver  the  thing  to  the  person  for  whose 
benefit  it  was  deposited,  on  demand  (whether  or  not  the  deposit 
was  made  for  a  definite  time)  unless  he  has  a  lien  upon  the  thing 
deposited  (see  Liens)  or  unless  he  has  been  forbidden  or  prevented 
from  doing  so  by  the  owner  of  the  thing — or  by  the  act  of  the  law, 
and  if  he  has  given  the  notice  required  in  HIO. 

8.  A  depository  is  not  bound  to  deliver  a  thing  deposited  with- 
out demand,  even  where  the  deposit  was  made  for  a  specified  time. 

9.  A  depository  must  deliver  the  thing  demanded  at  his  resi- 
dence, or  place  of  business,  as  may  be  most  convenient  for  him. 

10.  A  depository  must  give  prompt  notice  to  the  person  for  whose 
benefit  the  deposit  is  made,  of  any  proceedings  taken  adversely  to 
his  interest  in  the  thing  deposited,  which  may  tend  to  excuse  the 
depositary  from  delivering  the  thing  to  him.     (See  ^7. 

11.  A  depositary  who  believes  that  a  thing  deposited  with  him 
is  wrongfully  detained  from  its  true  owner,  may  give  him  notice  of 
the  deposit;  and  if,  within  a  reasonable  time  afterward,  such  sup- 
posed owner  does  not  claim  it,  and  sufficiently  establish  his  right  to 
it,  and  also  indemnify  the  depositary  against  the  claim  of  the  de- 
positor, the  depositary  is  exonerated  from  all  liability  to  the  person 
to  whom  he  gave  the  notice — upon  returning  the  thing  to  the  de- 
positor, or  provided  he  assumes  (in  good  faith)  a  new  obligation 
in  respect  to  the  thing,  to  his  prejudice.  When  a  deposit  is  made 
in  the  name  of  two  or  more  persons,  deliverable  or  payable  to 
either  or  their  survivor  or  survivors,  such  deposit,  or  part  of  it,  or 
increase  of  it,  may  be  delivered  or  paid  to  either  of  said  persons  or 
to  the  survivor  or  survivors  in  due  course  of  business. 

12.  A  depositor  must  indemnify  the  depositary  (1)  for  all  dam- 
age caused  to  him  by  the  defects  or  vices  of  the  thing  deposited  and 
also  (2)  for  all  expenses  necessarily  incurred  by  him  about  the 
thing,  other  than  such  as  are  involved  in  the  nature  of  the  under- 
taking. 


120  DEPOSIT 


13.  A  depository  of  livin.c:  animals  must  provide  them  with 
suitable  food  and  shelter,  and  treat  them  kindly. 

14.  A  depositary  may  not  use  the  thing  deposited  or  permit  it 
to  be  used,  for  any  purpose,  without  the  consent  of  the  depositor. 
He  may  not,  if  it  is  purposely  fastened  by  any  depositor,  open  it 
without  the  consent  of  the  latter — except  in  case  of  necessity. 

15.  A  depositary  is  liable  for  any  damage  happening  to  the 
thing  deposited  (during  his  wrongful  use  of  it)  unless  such  damage 
is  one  which  must  inevitably  have  happened  even  though  the  property 
had  not  been  used. 

16.  If  a  thing  deposited  is  in  actual  danger  of  perishing  before 
instructions  can  be  obtained  from  the  depositor,  the  depositary 
may  sell  it  for  th-e  best  price  obtainable,  and  retain  the  proceeds  as 
a  deposit — giving  immediate  notice  of  his  proceedings  to  the  de- 
positor. 

17.  If  a  thing  is  lost  or  injured  during  its  deposit,  and  the 
depositary  refuses  to  inform  the  depositor  of  the  circumstances 
under  which  the  loss  or  injury  occurred  (so  far  as  he  has  informa- 
tion concerning  them)  or  if  the  depository  wilfully  misrepresents 
the  circumstances  to  the  depositor — the  depositary  is  presumed  to 
have  wilfully — or  by  gross  negligence — permitted  the  loss  to  occur. 
But  such  liability  for  negligence  cannot  exceed  the  amount  which 
he  is  informed  by  the  depositor,  or  has  reason  to  suppose,  the  thing 
deposited  to  be  worth. 

GRATUITOUS  DEPOSIT  is  a  deposit  for  which  the  depositary 
receives  no  consideration  beyond  the  mere  possession  of  the  thing 
deposited.  An  involuntary  deposit  is  gratuitous,  the  depositary 
being  entitled  to  no  reward.  A  gratuitous  depositary  must  use,  at 
least,  slight  care  for  the  preservation  of  the  thing  deposited.  The 
duties  of  a  gratuitous  depositary  cease:  1.  Upon  his  restoring 
the  thing  deposited  to  its  owner;  or,  2.  Upon  his  giving  reasonable 
notice  to  the  owner  to  remove  it,  and  the  owner  failing  to  do  so 
within  a  reasonable  time.  But  an  involuntary  depositary,  under 
an  emergency,  cannot  give  such  notice  until  the  emergency  which 
gave  rise  to  the  deposit  is  past. 

19.  So  far  as  any  service  is  rendered  by  a  depositary,  or  required 
from  him,  his  duties  and  liabilities  are  those  to  be  found  under  Em- 
ployer and  Employee. 

20.  DEPOSIT     FOR     EXCHANGE:       A    deposit    for    exchange 


DEPOSITION  121 


transfers  to  the  depositary  the  title  to  the  thing  deposited,  and  cre- 
ates between  him  and  the  depositor  the  relation  of  debtor  and  cred- 
itor merely. 

Deposit  in  Court:  See  Tender;  Offer  to  Compromise;  Costs. 
When  it  is  admitted  by  the  pleadings,  or  shown  upon  examination  of 
a  party  to  the  action,  that  he  has  in  his  possession,  or  under  his 
control — any  money  or  other  thing  capable  of  delivery — which, 
being  the  subject  of  litigation — is  held  by  him  as  trustee  for  an- 
other party  (or  which  is  due  to  another  party) — the  Court  may 
order  the  money  or  thing  deposited  in  Court  or  delivered  to  such 
party,  upon  such  conditions  as  the  Judge  may  wish  to  impose.  And 
if  a  party,  before  the  commencement  of  the  action,  has  offered  to 
pay  to  the  plaintiff  a  certain  sum  of  money,  and,  then — at  the  be- 
ginning of  the  action,  renews  the  offer,  or  actually  deposits  that 
sum  in  Court, — and  the  judgment  is  for  no  more  than  that  amount 
— he  cannot  have  costs  assessed  against  him. 

A  Deposition  is  a  written  declaration,  under  oath,  made  upon  no- 
tice to  the  adverse  party,  for  the  purpose  of  enabling  him  to  attend 
and  cross-examine.  In  all  actions  and  proceedings  v/here  the  de- 
fault of  the  defendant  has  been  duly  entered,  and  in  all  proceed- 
ing to  obtain  letters  of  administration,  or  for  the  probate  of  wills 
and  the  issuance  of  letters  testamentary  thereon,  where,  after  due 
and  legal  notice,  those  entitled  to  contest  the  application  have  failed 
to  appear,  the  entry  of  said  defaults,  and  the  failure  of  said  persons 
to  appear  after  notice,  shall  be  deemed  to  be  a  waiver  of  the  right 
to  any  further  notice  of  any  application  or  proceeding  to  take  tes- 
timony by  deposition  in  such  action  or  proceeding.  Depositions 
must  be  taken  in  the  form  of  question  and  answer.  The  words  of  the 
witness  must  be  written  down,  in  the  presence  of  the  witness,  by 
the  officer  taking  the  deposition,  or  by  some  disinterested  person  ap- 
pointed by  him.  It  may  be  taken  down  in  sh-orthand,  in  which  case 
it  must  be  transcribed  into  longhand  by  the  person  who  took  it  down. 
When  completed,  it  must  be  carefully  read  to  or  by  the  witness  and 
corrected  by  him  in  any  particular,  if  desired,  by  writing  or  caus- 
ing his  corrections  to  be  written  in  the  body  or  margin  of  or  at  the 
bottom  of  the  deposition,  and  must  then  be  subscribed  by  the  initials 
near  said  corrections.  If  the  parties  agree  in  writing  to  any  other 
mode,  the  mode  so  agreed  upon  must  be  followed.  A  deposition  may 
be  taken  of  any  party  to  the  action,  at  any  time  before   trial,  or 


122  EASEMENT 


several  times,  if  desired;  or  of  a  witness  who  is  the  only  person  who 
can  state  facts  material  to  the  action;  or  of  a  necessary  witness  out- 
side of  the  state.  The  deposition  may  be  read  at  the  time  of  the 
trial,  if  the  person  is  not  present,  or  if  he  is  present,  it  may  be  used 
to  show  that  he  is  testifying  contrary  to  what  he  said  in  his  deposition 
— if  such  is  the  case.  This  right  is  a  very  valuable  one,  giving  to 
each  side  full  opportunity  to  find  out  all  the  facts,  both  in  their  favor 
and  against  them,  and  to  discover  before  trial,  what  the  opposing 
party  may  be  expected  to  testify  to. 

Description:     See  Real  Estate;  Real  Estate  Agents. 

Designs:      See  Inventions. 

Deviation:      See  Insurance;  Ships. 

Discharge:     See  Bankruptcy. 

Discharge:      See  Negotiable  Instruments,  113200  and  following. 
3264,  3265d. 

Dishonor:  See  Negotiable  Instruments,  113170,  3192,  3195,  3196, 
3214,  3219,  3222,  3229,  3230,  3231,  3233,  3239,  3246,  3251. 

Drawee:  See  Negotiable  Instruments,  113142,  3163,  3196,  3208, 
3209,  3211,  3213,  3217,  3218,  3219,  3222,  3225,  3228,  3229,  3237. 

Drawer:  See  Negotiable  Instruments,  113110,  3142,  3245,  3151, 
3160,  3170,  3211,  3295,  3212,  3219,  3220,  3223,  3224,  3228,  3231 
to  3234  inc.,  3239,  3244,  3265. 

Duces  Tecum:     See  Subpoena. 

Due  Process  of  Law:  There  is  no  one  definition  which  will  be 
accurate,  or  complete  and  appropriate  under  all  circumstances.  In 
each  particular  case  it  is  such  an  exertion  of  the  powers  of  govern- 
ment as  the  settled  maxims  of  law  permit  and  sanction,  and  under 
such  safeguards  for  the  protection  of  individual  rights  as  those 
maxims  prescribe  for  the  class  of  cases  to  which  such  belongs. 

Duress:  See  Negotiable  Instruments,  113136;  Contracts;  Bill  of 
Lading,  2130C. 

Duress  consists  in:  1.  Unlawful  confinement  of  the  person  of 
the  party,  or  of  the  husband  or  wife  of  such  party,  or  of  an  an- 
cestor, descendant,  or  adopted  child  of  such  party,  husband,  or  wife; 

2.  Unlawful   detention    of   the   property   of   any   such   person;    or, 

3.  Confinement  of  such  person,  lawful  in  form,  but  fraudulently 
obtained,    or  fraudulently   made   unjustly   harassing   or    oppressive. 

Easement:     See  Real  Property. 


EMPLOYEE  123 


Ejectment:     See  Real  Estate. 

Elevator:     See  Carriers. 

Emblements:      See   Crops. 

Eminent  Domain:      See   Costs. 

Employee:  See  Convicts;  Wages;  Boycott;  Picketing;  Hours  of 
Labor;  Seaman;  Master  and  Servant;  Rest  Day;  Elections;  Monop- 
olies; Trade  Marks;  Conspiracy;  Injunctions. 

The  contract  of  employment  is  a  contract  by  which  one,  v^^ho  is 
called  the  employer,  enga.2:es  another,  who  is  called  the  employee, 
to  do  something  for  the  benefit  of  the  employer,  or  of  a  third 
person. 

Every  employment  is  terminated:  (1)  By  the  expiration  of  its 
appointed  term;  (2)  By  the  extinction  of  its  subject;  (3)  By  the 
death  of  the  employee;  or,  (4)  By  his  legal  incapacity  to  act  as 
such. 

An  employee,  unless  the  term  of  his  service  has  expired,  or  un- 
less he  has  a  right  to  discontinue  it  at  any  time  without  notice, 
must  continue  his  service  after  notice  of  the  death  or  incapacity  of 
his  employer,  so  far  as  is  necessary  to  protect  from  serious  injury 
the  interests  of  the  employer's  successor  in  interest,  until  a  reason- 
able time  after  notice  of  the  facts  has  been  communicated  to  such 
successor.  The  successor  must  compensate  the  employee  for  such 
service  according  to  the  terms  of  the  contract  of  employment. 

An  employment,  having  no  specified  term,  may  be  terminated  at 
the  will  of  either  party,  on  notice  to  the  other.  Employment  for  a 
specified  term  shall  mean  an  employment  for  a  period  greater  than 
one  month. 

An  employment,  for  a  specified  term,  may  be  terminated  at  any 
time  by  the  employer,  in  case  of  any  wilful  breach  of  duty  by  the 
employee  in  the  course  of  his  employment,  or  in  case  of  his  habitual 
neglect  of  his  duty  or  continued  incapacity  to  perform  it. 

An  employment,  for  a  specified  term,  may  be  terminated  by  the 
employee  at  any  time,  in  case  of  any  wilful  or  permanent  breach  of 
the  obligations  of  his  employer  to  him  as  an  employee. 

An  employee  who  is  not  employed  for  a  specified  term,  dismissed 
by  his  employer,  is  entitled  to  compensation  for  services  rendered 
up  to  the  time  of  such  dismissal. 

An  employee  who  is  not  employed  for  a  specified  term  and  who 


lt>4  EMPLOYEE 


quits  the  service  of  his  employer,  is  entitled  to  compensation  for 
services  rendered  up  to  the  time  of  such  quitting. 

Where  a  person  is  hired  under  an  agreement  that  his  work  shall 
be  satisfactory  to  the  hirer,  he  cannot  complain  if  he  is  discharged 
solely  because  his  employer  says  that  the  work  is  not  satisfactory 
to  him.  The  employer  is  the  sole  judge,  without  regard  to  the 
reasonableness  or  justice  of  his  decision. 

If  one  knows  that  an  employee  is  working  under  contract,  and 
induces  him  to  break  that  contract,  the  employer  may  recover 
damages;  even  though  the  employment  was  at  will,  or  if  the  con- 
tract was  for  no  specified  time.  An  employer  is  entitled  to  the 
good  will  of  his  employees,  precisely  as  a  merchant  is  entitled  to 
the  good  will  of  his  customers,  though  they  are  under  no  obligations 
to  trade  with  him  continually.  The  value  of  the  relation  lies  in  the 
reasonable  probability  that  by  properly  treating  his  employees,  and 
paying  them  fair  wages,  and  avoiding  reasonable  grounds  for  com- 
plaint, an  employer  will  be  able  to  retain  them,  and  to  fill  vacancies 
occurring  from  time  to  time  by  the  employment  of  other  men  on 
the  same  terms.  The  pecuniary  value  of  such  probabilities  is 
incalculably  great. 

An  employer  must  in  all  cases  indemnify  his  employee  for 
losses  occasioned  by  the  former's  want  of  ordinary  care. 

If  one  acts  without  consideration,  and  thus  undertakes  to  do  a 
service  for  another,  he  is  not  bound  to  perform  such  service;  but 
if  he  actually  enters  upon  its  performance,  he  must  at  least  use 
slight  care  and  diligence  in  doing  the  act. 

If  one  induces  another  to  intrust  him  with  the  performance  of 
a  service  (at  his  own  special  request)  he  must  fully  perform  such 
service.  In  other  cases,  one  who  vmdertakes  to  do  some  service  for 
nothing,  may  relinquish  at  any  time. 

An  employee,  who  works  for  nothing,  under  a  written  power  of 
attorney,  must  act  under  it  so  long  as  it  remains  in  force,  or  until 
he  gives  notice  to  his  employer  that  he  will  not  do  so. 

One  who,  for  a  good  consideration,  agrees  to  serve  another,  must 
perform  the  service,  and  must  use  ordinary  care  and  diligence 
therein,  so  long  as  he  is  thus  employed. 

One  who  is  employed  at  his  own  request  to  do  that  which  is  more 
for  his  own  advantage  than  for  that  of  his  employer,  must  use 
great  care  and  diligence  therein  to  protect  the  interest  of  the  latter. 


EMPLOYEE  125 


A  contract  to  render  personal  service,  other  than  a  contract  of 
apprenticeship,  cannot  be  enforced  against  the  employee  beyond 
the  term  of  five  years  from  the  commencement  of  service  under 
it;  but  if  the  employee  voluntarily  continues  his  service  under  it 
beyond  that  time,  the  contract  may  be  referred  to  as  affording  a 
presumptive  measure  of  the  compensation   (but  see  Injunction). 

An  employee  must  substantially  comply  with  all  the  directions 
of  his  employer  concerning  the  service  on  which  he  is  engaged, 
except  where  such  obedience  is  impossible  or  unlawful,  or  would 
impose  new  and  unreasonable  burdens  upon  the  employee. 

An  employee  must  perform  his  service  in  conformity  to  the 
usage  of  the  place  of  performance,  unless  otherwise  directed  by 
his  employer,  or  unless  it  is  impracticable,  or  manifestly  injurious 
to  his  employer  to   do   so. 

An  employee  is  bound  to  exercise  a  reasonable  degree  of  skill, 
unless  his  employer  has  notice,  before  employing  him,  of  his  want 
of  skill. 

An  employee  is  bound  to  use  such  skill  as  he  possesses,  so  far  as 
same  is  required,  for  the  service  specified. 

The  employee  may  employ  others  to  do  the  work  where  his  per- 
sonal  attention    is   not   contracted   for. 

Everything  which  an  employee  acquires  by  virtue  of  his  employ- 
ment, except  the  compensation,  if  any,  which  is  due  to  him  from 
his  employer,  belongs  to  the  latter,  whether  acquired  law^fully  or 
unlawfully,  or  during  or  after  the  expiration  of  the  term  of  his 
employment.     (See  Invention.) 

An  employee  must,  on  demand,  render  to  his  employer  just  ac- 
counts of  all  his  transactions  in  the  course  of  his  service,  as  often 
as  may  be  reasonable,  and  must,  without  demand,  give  prompt 
notice  to  his  employer  of  everything  which  he  receives  for  his 
account. 

An  employee  who  receives  anything  on  account  of  his  employer, 
in  any  capacity  other  than  that  of  a  mere  servant,  is  not  bound 
to  deliver  it  to  him  until  demanded,  and  is  not  at  liberty  to  send  it 
to  him  from  a  distance,  without  demand,  in  any  mode  involving 
greater  risk  than  its  retention  by  the  employee  himself. 

An  employee  who  has  any  business  to  transact  on  his  own  ac- 
count, similar  to  that  intrusted  to  him  by  his  employer,  must  al- 
ways give  the  latter  the  preference. 


126  ENDORSEMENT 


An  employee  who  is  expressly  authorized  to  employ  a  substitute 
is  liable  to  his  principal  only  for  want  of  ordinary  care  in  his  se- 
lection.    The  substitute  is  directly  responsible  to   the  principal. 

An  employee  who  is  g'uilty  of  a  culpable  degree  of  negligence  is 
liable  to  his  employer  for  the  damage  thereby  caused  to  the  latter* 
and  the  employer  is  liable  to  him,  if  the  service  is  not  gratuitous, 
for  the  value  of  such  services  only  as  are  properly  rendered. 

Where  a  person,  who  is  hired  at  a  fixed  salary,  remains  in  the 
same  employment  without  any  new  contract,  the  presumption  is 
that  the  continued  employment  is  at  the  same  salary. 

When  service  is  to  be  rendered  by  two  or  more  persons  jointly, 
and  one  of  them  dies,  the  survivor  must  act  alone,  if  the  service 
to  be  rendered  is  such  as  he  can  rightly  perform  without  the  aid  of 
the  deceased  person,  but  not  otherwise. 

Every  employment  in  which  the  power  of  the  employee  is  not 
coupled  with  an  interest  in  its  subject  is  terminated  by  notice  to 
him  of:  (1)  The  death  of  the  employer;  or,  (2)  His  legal  in- 
capacity to  contract. 

The  parties  to  a  contract  of  employment  may,  however,  in  writ- 
ing, provide  that  it  shall,  notwithstanding  the  death  of  the  em- 
ployer, continue  obligatory  for  and  against  his  heirs  and  personal 
representatives,  provided  their  liability  shall  be  restricted  to  prop- 
erty received  from  and  under  him. 

In  the  absence  of  proof  of  a  DISCHARGE,  and  that  it  was  wrong- 
ful, one  can  only  recover  for  the  amount  actually  due  him  at  the 
time  he  filed  a  suit,  and  not  for  wages  for  the  entire  term  of  his 
agreed  employment. 

A  discharge  cannot  be  made  by  a  secret  intention  on  the  part  of 
the  master.  The  servant  must  be  notified  in  some  manner.  No  set 
form  of  words  is  necessary,  but  any  words  or  acts  which  show  a  clear 
intention  on  the  part  of  the  master  to  dispense  with  the  servant's 
services,  are  sufficient. 

Mere  failure  to  pay  wages  does  not  amount  to  a  discharge.  This 
merely  gives  the  servant  the  option  of  quitting,  and  the  right  to  sue 
for  the  money  then  due  and  unpaid,  or  of  continuing  in  the  service, 
and  then  to  sue  for  the  salary  as  he  earns  it  in  the  future — if  it  is 
still  unpaid.  Even  closing  up  the  master's  business  is  not  a  discharge 
of  the  servant,  if  no  other  notice  is  given  him. 

Endorsement:     See  Indorsement. 


ESTRAYS  127 


Equity  of  Redemption.     See  Mortgages. 

Escheat:  When  the  title  to  property  reverts  to  the  State,  by  rea- 
son of  lack  of  heirs,  it  is  said  to  "escheat."  (See  Succession;  Wills.) 
All  property,  real  and  personal,  within  the  limits  of  this  state,  which 
does  not  belong  to  any  person,  belongs  to  the  people.  The  title  to 
the  estate  of  a  person  who  dies  without  a  will,  vests  immediately 
in  the  heirs  whether  known  or  unknown.  If  the  heirs  are  non-resi- 
dents, and  do  not  claim  the  property  within  five  years  from  the 
death,  or  if  there  are  no  heirs  or  next  of  kin,  this  title  becomes  for- 
feited, without  any  judicial  proceedings  and  even  though  the  heirs 
be  known,  it  reverts  to  the  people,  for  the  support  of  the  public 
schools. 

Escrow:  When  deeds  are  executed  and  delivered  to  some  third 
person,  to  be  held  by  him  until  some  event  happens — such  as  a 
payment  of  a  certain  sum  of  money,  or  the  occurrence  of  a  death, 
or  during  the  time  for  the  clearing  up  the  clouds  on  a  title — such 
person  is  called  the  escrow  holder,  and  the  act  of  holding  this  deed 
is  called  an  escrow.    (See  Deeds.) 

When  deeds  are  delivered,  thus,  to  be  recorded  at  the  death  of 
the  grantor,  he  parts  v/ith  all  his  present  title,  and  only  is  entitled 
to  a  life  estate  in  the  property.  Pie  cannot  sell  it  to  any  other 
person,  and  giving  back  the  deed  to  him — if  the  escrow  holder 
would  thus  violate  his  trust — would  not  reinvest  him  with  the  title, 
any  more  than  if  the  deed  were  torn  up,  or  cancelled. 

Estrays:  See  Animals;  Findings;  Fences.  In  1919  the  Legisla- 
ture passed  an  act  relating  to  estrays  which  is  to  be  submitted  to 
the  vote  of  the  people  in  each  supervisorial  district,  but  shall  not  in 
any  case  apply  in  the  counties  of  Del  Norte,  Lassen,  Shasta,  Modoc, 
Siskiyou,  Trinity, 

Any  person  finding  at  any  time  any  estray  domestic  animal  or 
animals  upon  his  premises,  or  upon  premises  to  which  he  has  the 
right  of  possession,  or  upon  highways  adjacent  to  it,  may  take  up  the 
same  and  have  a  lien  thereon  for  all  expenses  incurred  and  costs  in 
keeping  and  caring  for  said  animal  or  animals,  as  hereinafter  pro- 
vided; and  no  person  shall  remove  them  from  the  possession  of  the 
taker-up,  or  from  the  possession  of  the  officer  to  whom  they  may 
have  been  delivered,  except  as  hereinbefore  provided.  The  word 
"estray"  as  used  in  this  act  is  intended  to  include  all  domestic  ani- 


128  ESTRAYS 


mals  that  have  strayed  upon,  or  been  found  upon,  lands  other  than 
those  of  their  owner,  or  the  public  domain,  or  lands  whose  owner 
(or  to  which  the  person  in  possession  thereof)  has  consented,  may 
be  passed  over,  or  allowed  to  be  entered  on,  by  such  animal.  Any 
person  taking  up  an  estray  animal  or  animals  shall  confine  the  same 
in  a  secure  place  and  within  one  week  thereafter  shall  publish  in 
some  newspaper  of  general  circulation,  printed  and  published  in  the 
county  in  which  such  estray  is  found,  and  also  file  with  the  county  re- 
corder of  said  county  a  notice  containing  a  description  of  the  animal 
or  animals  taken  up,  v/ith  the  marks  and  brands,  if  they  have  any, 
together  with  the  probable  value  of  each  animal,  and  a  statement  of 
the  place  where  the  taker-up  found,  and  where  he  has  confined  the 
same.  The  county  recorder  shall  receive  for  filing  said  notice,  the  sum 
of  fifty  cents.  The  said  notice  shall  be  so  published  for  two  weeks. 
If  there  be  no  newspaper  of  general  circulation  printed  and  pub- 
lished in  the  county  where  such  estray  is  found,  then  in  a  newspaper 
published  in  an  adjoining  county  within  this  state;  provided,  however, 
that  the  cost  of  publication  does  not  exceed  three  dollars.  If,  how- 
ever, the  animal  has  the  owner's  brand  or  mark  upon  it,  and  such 
brand  or  mark  has  been  recorded  according  to  lav/,  or  if  the  finder 
knows  the  owner  of  said  animal,  or  the  person  having  charge  of  it, 
then,  v/ithin  five  days  after  said  animal  is  taken  up  he  shall  notify 
the  owner  of  said  animal,  or  other  person  having  charge  of  it,  which 
notice  shall  contain  the  same  information  as  the  notice  to  be  pub- 
lished and  recorded.  This  notice  shall  be  in  lieu  of  publishing  and 
recording  such  notice,  and  for  which  notice  he  shall  be  entitled  to  the 
sum  of  fifty  cents. 

At  any  time  within  thirty  days  from  the  date  of  the 
filing  of  the  notice  specified  in  section  two  of  this  act, 
any  person  claiming  such  estray  animal  or  animals  shall 
appear  and  demand  from  the  taker-up  the  possession  there- 
of, and  shall  at  the  same  time  pay  to  the  taker-up  all  damages, 
expenses,  and  costs  incurred  by  reason  of  taking  up  said  animal  or 
animals,  and  upon  receiving  such  damages,  expenses  and  costs,  the 
taker-up  shall  immediately  deliver  to  the  party  claiming  such  animal 
or  animals  the  possession  thereof;  such  damages,  expenses  and  costs 
shall  be  estimated  as  follows:  1.  The  total  amount  paid  by  the 
taker-up  to  the  county  recorder,  and  the  reasonable  cost  of  publish- 
ing said  notice.     2.     The  sum  of  thirty  cents  per  day  for  the  keep- 


ESTRAYS  129 


ing  and  care  of  each  horse,  mule,  jenny,  ass,  cow,  bull,  ox,  steer  or 
calf.  3.  The  sum  of  ten  cents  per  day  for  the  keeping  and  care  of 
each  sheep,  goat,  hog  or  other  animal  not  hereinbefore  specified, 
provided  that  the  taker-up  of  said  animal  or  animals  must  properly 
feed  and  water  the  same  while  under  his  care,  and  if  he  fails  so  to 
do  shall  forfeit  all  right  of  lien. 

If  the  party  claiming  such  estray  animal  or  animals  is  dissatis- 
fied with  the  amount  charged  by  the  taker-up  for  costs  and  expenses, 
he  shall  tender  to  the  taker-up  the  proper  amount  for  it,  and  if  the 
said  tender  be  refused,  the  party  claiming  such  estray  animal  or  ani- 
mals shall  within  ten  days  thereafter  commence,  in  the  proper  court, 
suit  against  the  taker-up  for  the  recovery  of  the  possession  of  such 
estray  animal  or  animals,  in  which  said  action  the  taker-up  may  set 
forth  his  expenses  and  costs,  and  said  matter,  together  with  accru- 
ing expenses  and  costs  to  the  time  of  the  entry  of  the  judgment, 
shall  be  determined  by  the  court  in  accordance  with  the  provisions 
of  this  act,  and  the  amount  of  all  such  expenses  and  costs,  and  the 
costs  of  said  action  shall  be  included  in  any  judgment  awarded  by 
said  court,  and  such  costs  in  said  action  shall  be  in  favor  of  the  plain- 
till  in  said  action  and  against  said  defendant,  if  the  court  shall  find 
that  the  amount  tendered  by  the  plaintiff  to  the  defendant  was  not 
less  than  the  proper  amount;  otherwise  said  costs  shall  be  in  favor 
of  the  defendant  and  against  the  plaintiff.  Without  the  consent  of 
defendant  in  any  such  action,  no  return  of  such  animal  or  animals 
shall  be  adjudged  until  the  plaintiff  shall  pay  to  defendant  or  deposit 
in  court  payable  to  him,  the  amount  of  all  such  expenses  and  costs 
in  said  action;  and  in  case  such  payment  or  deposit  be  not  made 
within  ten  days  after  the  same  shall  have  been  determined  by  the 
court,  or  said  action  be  not  prosecuted  with  diligence,  then  the  said 
action  may  be  dismissed  on  motion  of  defendant  without  notice,  in 
case  of  such  dismissal,  the  defendant  shall  have  judgment  for  his 
costs.  In  any  such  action  for  plaintiff  to  recover,  it  shall  be  incum- 
bent on  him  to  establish  an  existing  right  in  himself  to  the  possession 
of  such  animal  or  animals.  If  no  person  appears  and  claims  the  ani- 
mal or  animals  taken  up  within  thirty  days  after  the  filing  of  the  no- 
tice; or  if  a  person  does  appear  and  claim  the  animal  or  animals  tak- 
en up  within  thirty  days  after  the  filing  of  the  notice,  but  shall  fail 
to  pay  to  the  taker-up  the  expenses  and  costs  as  provided,  and  shall 
fail  to   commence   and  prosecute  with   diligence   an   action   for   the 


130  ESTRAYS 


recovery  of  the  possession  of  such  estray  animal  or  animals  within 
the  time  required;  or  if  said  action  shall  be  dismissed;  then  the  taker- 
up  shall,  in  writing,  notify  a  constable,  or  other  ofRcer  of  the  township 
or  county  in  which  said  animal  or  animals  are  held,  which  notice 
shall  specify  that  he  has  complied  with  all  the  provisions  of  this  act, 
and  that  a  claimant  of  said  animal  or  animals  has  failed  to  appear 
and  claim  the  same,  or  if  he  has  appeared  that  he  lias  failed  to  pay 
the  expenses  and  costs  and  has  failed  to  commence  or  prosecute 
with  diligence  an  action  for  the  recovery  of  the  possession  of  such 
animal  or  animals  within  the  time  and  in  the  manner  provided,  or 
that  said  action  has  been  dismissed,  and  that  such  animal  or  animals 
are  held  by  him  subject  to  sale.  Said  constable,  or  officer,  shall  im- 
mediately proceed  to  sell  such  animal  or  animals  at  public  sale,  in 
conformity  with  the  law  concerninp:  sales  on  execution,  and  shall  be 
entitled  to  the  same  fees  as  are  provided  by  law  for  sales  under 
execution.  Out  of  the  money  realized  from  the  sale  of  estrays.  the 
constable  or  other  officer  shall  first  retain  his  fees;  he  shall  then  pay 
to  the  taker-up  his  expenses  and  costs  estimated  as  provided,  or  as 
much  of  it  as  the  funds  in  his  hands  will  permit,  and  the  surplus,  if 
any,  he  shall  pay  to  the  county  treasurer,  to  be  held  by  him  for  the 
owner  of  the  estray  or  estrays  for  which  it  was  received  in  payment. 
If  any  person  or  persons  shall,  within  one  year  thereafter,  prove  to 
the  satisfaction  of  the  board  of  supervisors  of  the  county  in  which 
the  estray  or  estrays  were  sold,  that  he  or  they  are  entitled  to  the 
sum  so  held  by  the  county  treasurer,  or  any  part  of  it,  the  said  board 
of  supervisors  shall  order  such  sum  to  be  paid  over  to  the  person  or 
persons;  and  if  not  so  proven  within  one  year,  then  the  same  shall 
become  a  part  of  the  common  school  fund  of  said  county. 

All  sales  made  by  any  constable,  or  other  officer,  under  the  pro- 
visions of  this  act,  shall  convey  a  good  and  valid  title  to  the  pur- 
chaser, and  the  owner  of  the  estray  or  estrays  so  sold  shall  thereaf- 
ter be  barred  from  all  right  to  recover  the  same.  The  taker-up  of 
an  estray  animal  or  animals  shall  use  reasonable  care  to  preserve  the 
same  from  injury,  but  if  an  estray  animal  or  animals  die  or  escape 
from  the  possession  of  the  taker-up  at  any  time  while  he  is  holding 
.  the  same  under  the  provisions  of  this  act,  the  taker-up  shall  not  be 
held  liable  in  any  manner  on  account  of  such  animal  or  animals. 
Nothing  in  this  act  shall  affect  the  laws  or  regulations  in  force  or 
which  may  be  in  force  regarding  estrays,  the  poundkeeper,  or  other 


EXECUTION  131 


pound  officer  within  the  limits  of  any  city  or  town  where  laws  re- 
garding estrays  are  in  force. 

Eviction:      See  Real  Estate;  Landlord  and  Tenant. 

Excavator.      See  Liens. 

Exceptions:     See  Real  Estate. 

Exchange:  See  Sales;  Personal  Property;  Fraud;  Contracts;  is  a 
contract  by  which  the  parties  mutually  give — or  agree  to  give — one 
thing  for  another,  when  neither  thing  (or  both  things)  is  money  only. 
When  the  value  of  the  thing  to  be  given  either  party  is  more  than 
$200,  then  the  rule  as  to  void  sales  applies.  The  provisions  of  the 
article  on  Sales  applies  to  exchanges.  Each  party  has  the  right  and 
obligation  of  a  seller  as  to  the  thing  which  he  gives,  and  of  a  buyer 
as  to  the  thing  which  he  takes.  On  an  exchange  of  money,  each 
party  warrants  to  the  other  the  genuineness  of  the  money  given  by 
him. 

Execution:  See  Actions;  Appeal;  Attachment;  Title;  Sales;  Ex- 
emption; Bill  of  Lading,  2128h,  2129e;  Judgments;  Warehouse  Re- 
ceipts, 25,  42. 

The  party  in  whose  favor  judgment  is  given  may,  at  any  time 
within  five  years  after  the  entry  of  it,  have  a  writ  of  execution 
issued  for  its  enforcement. 

If,  after  the  entry  of  the  judgment,  the  issuing  of  execution 
on  it  is  stayed  or  enjoined  by  any  judgment  or  order  of  court, 
or  by  operation  of  law,  the  time  during  which  it  is  so  stayed 
or  enjoined  must  be  excluded  from  the  computation  of  the  five  years 
within  which  execution  may  issue.  The  Court  or  the  Judge  of  it 
shall  not  have  the  power,  without  the  consent  of  the  adverse  party, 
to  stay,  for  a  longer  period  than  thirty  days,  the  execution  of  any 
judgment  or  order  the  execution  of  which  would  be  stayed  on 
appeal  only  by  the  execution  of  a  stay  bond.  All  goods,  chattels, 
moneys,  and  other  property,  both  real  and  personal,  or  any  interest 
therein,  of  the  judgment  debtor,  not  exempt  by  law,  and  all  prop- 
erty and  rights  of  property  seized  and  held  under  attachment  in  the 
action,  are  liable  to  execution.  Shares  and  interests  in  any  cor- 
poration or  company,  and  debts  and  credits,  and  all  other  property, 
both  real  and  personal,  or  any  interest  in  either  real  or  personal 
property,  and  all  other  property  not  capable  of  manual  delivery, 
may  be  levied  upon  or  released  from  levy  in  like  manner  as  like 
property  may  be  attached  or  released  from  attachment.     Gold  dust 


132  EXEMPTION 


must  be  returned  by  the  officer  as  so  (much)  money  collected  at 
its  current  value,  without  exposing  the  same  to  sale.  Until  a  levy, 
property  is  not  affected  by  the  execution. 

The  execution  will  be  issued  at  any  time  within  five  years  after 
rendition  of  judprment  (in  the  Justices'  Court),  and  afterward  in 
the  Superior  Court,  if  the  party  entitled  to  the  judgment  knows 
where  there  is  property  which  can  be  levied  upon.  Upon  making 
affidavit  to  this  effect,  and  applying  to  the  Court,  an  order  will  be 
made  instructing  the  Clerk  to  issue  the  execution — even  at  any 
time  after  the  five  year  period. 

SUPPLEMENTARY  PROCEEDINGS:  If  the  officer  cannot 
find  any  property  upon  which  to  satisfy  the  execution,  he  will 
return  it  to  the  court  which  issued  it,  wholly  unsatisfied.  The 
Judge  of  that  court  will  then  issue  an  order  (upon  application 
of  the  judgment  creditor  showing  these  facts),  requiring  the 
judgment  debtor  to  appear  before  that  court  at  a  certain  day 
and  to  then  testify  under  oath  concerning  the  property  which 
he  has.  This  proceedure  is  called  "Supplementary  Examination." 
At  the  same  time,  other  persons  who  may  be  suspected  to  be  hold- 
ing property  belonging  to  or  for  the  benefit  of  the  judgment  debtor, 
may  be  brought  into  the  same  court  by  subpoena  and  also  exam- 
ined under  oath  regarding  these  matter.s. 

Exemptions,  (FROM  EXECUTION).  See  Attachment;  Actions: 
Wages;  Bankruptcy. 

An  attachment  cannot  hold,  nor  can  an  execution  be  levied,  upon 
any  of  the  following  property  if  the  owner  of  it  objects  by  claim- 
ing his  exemption  rights:  Chairs,  tables,  desks  and  books,  to  the 
value  of  two  hundred  dollars,  belonging  to  the  judgment  debtor. 
Necessary  household,  table  and  kitchen  furniture  belonging  to  the 
judgment  debtor,  including  one  sewing  machine,  stoves,  stove-pipes, 
and  wearing  apparel,  beds,  bedding  and  bedsteads,  hanging  pictures 
and  drawings,  drawn  or  painted  by  any  member  of  the  family,  and 
family  portraits  and  their  necessary  frames,  provisions  actually 
provided  for  individual  or  family  use,  sufficient  for  three  months; 
three  cows  and  their  sucking  calves;  four  hogs,  with  their  suckling 
pigs;  and  food  for  such  cows  and  hogs  for  one  month;  poultry  not 
exceeding  in  value  twenty  dollars;  also  one  piano,  one  shotgun  and 
one  rifle.  The  farming  utensils  or  implements  of  husbandry  of  the 
judgment  debtor,  not  exceeding  in  value  the  sum  of  one  thousand 


EXEMPTION  133 


dollars;  also  two  oxen,  or  two  horses,  or  two  mules,  and  their  har- 
ness, one  cart  or  wagon,  and  food  for  such  oxen,  horses  or  mules 
for  one  month;  also  all  seed,  grain  or  vegetables  actually  provided, 
reserved,  or  on  hand  for  the  purpose  of  planting  or  sowing  at  any 
time  within  the  ensuing  six  months,  not  exceeding  in  value  the  sum 
of  two  hundred  dollars;  and  seventy-five  beehives,  and  one  horse 
and  vehicle  belonging  to  any  person  who  is  maimed  or  crippled, 
and  the  same  is  necessary  in  his  business. 

The  tools  or  implements  of  a  mechanic  or  artisan  necessary  to 
carry  on  his  trade;  the  notarial  seal,  records  and  office  furniture 
of  a  notary  public;  th«  instruments  and  chest  of  a  surgeon,  physi- 
cian, surveyor,  or  dentist,  necessary  to  the  exercise  of  their  pro- 
fession, libraries  and  necessary  office  furniture;  the  professional 
libraries  of  attorneys,  judges,  ministers  of  the  gospels,  editors, 
school  teachers,  and  music  teachers,  and  their  necessary  office  furni- 
ture; and  one  safe;  also  the  musical  instruments  of  music  teachers, 
actually  used  by  them  in  giving  instructions;  all  the  indexes,  ab- 
stracts, books,  papers,  maps,  and  office  furniture  of  a  searcher  of 
records  necessary  to  be  used  in  his  profession;  also  the  typewriters, 
or  other  mechanical  contrivances  employed  for  writing  in  type,  actu- 
ally used  by  the  owner  thereof  for  making  his  living;  one  bicycle, 
when  the  same  is  used  by  its  owner  for  the  purpose  of  carrying  on 
his  regular  business,  or  when  the  same  is  used  for  the  purpose  of 
transporting  the  owner  to  or  from  his  place  of  business. 

The  earnings  of  the  judgment  debtor  for  his  personal  services  ren- 
dered at  any  time  within  thirty  days  next  preceding  the  levy  of  exe- 
cution or  attachment,  when  it  appears  by  the  debtor's  affidavit  or 
otherwise,  that  such  earnings  are  necessary  for  the  use  of  his  fam- 
ily, residing  in  the  State,  supported  in  whole  or  in  part  by  his  labor; 
but  where  debts  are  incurred  by  any  such  person  or  his  wife  or 
family,  for  the  common  necessaries  of  life,  or  have  been  incurred 
at  a  time  when  the  debtor  had  no  family  residing  in  this  State,  sup- 
ported in  whole  or  in  part  by  his  labor  the  one-half  of  such  earnings 
above  mentioned,  are  nevertheless  subject  to  execution,  garnish- 
ment, or  attachment  to  satisfy  debts  so  incurred.  No  portion  of 
the  wages  or  earnings  of  a  man  without  a  family  are  exempt  from 
execution. 

All  court-houses,  jails,  public  offices  and  buildings,  lots,  g:rounds 
and  personal  property;  the   fixtures,  books,   papers   and   office  be- 


134  EXEMPTION 


longings  of  any  city  or  county  of  this  State,  and  all  cemeteries, 
public  parks  and  places,  public  buildings,  town  halls,  markets,  build- 
ings for  the  use  of  the  fire  departments  and  military  organizations 
and  the  lots  and  grounds  thereto  belonging  and  appertaining,  owned 
or  held  by  such  town  or  incorporated  city  or  dedicated  by  any  town 
or  city  to  health,  ornament  or  public  use,  or  for  the  use  of  any  fire 
or  military  company  organized  under  the  laws  of  this  State.  All 
materials  not  exceeding  $1000  in  value  purchased  in  good  faith  for 
use  in  the  construction,  alteration,  or  repair  of  any  building,  mining 
claim,  or  other  improvement,  as  long  as  in  good  faith  the  same  is 
about  to  be  applied  to  the  construction,  alteration  or  repair  of  such 
building,  mining  claim  or  other  improvement.  The  shares  held  by 
a  member  of  a  homestead  association  duly  incorporated,  not  exceed- 
ing in  value  one  thousand  dollars,  if  the  person  holding  the  shares 
is  not  the  owner  of  a  homestead  under  the  laws  of  this  State.  All 
monies,  benefits,  privileges  or  immunities  in  any  manner  growing 
out  of  any  life  insurance  on  the  life  of  the  debtor,  if  the  annual 
premiums  paid  do  not  exceed  five  hundred  dollars.  All  fire  engines, 
hooks  and  ladders,  with  carts,  trucks  and  carriages,  hose,  buckets, 
implements  and  apparatus  thereunto  appertaining,  and  all  furni- 
ture and  uniforms  of  any  fire  company  or  department  organized 
under  any  laws  of  this  State.  All  uniforms,  arms,  accoutrements 
required  by  law  to  be  kept  by  any  person,  and  also  one  gun  to  be 
selected  by  the  debtor. 

Two  horses,  two  oxen,  or  two  mules,  and  their  harness,  and  one 
cart  or  wagon,  one  dray  or  truck,  one  coupe,  one  hack  or  carriage, 
for  one  or  two  horses,  by  the  use  of  which  a  cart-man,  drayman, 
truckman,  huckster,  peddler,  hackman,  teamster  or  other  laborer 
habitually  earns  his  living;  and  one  horse,  with  vehicle  and  harness 
or  other  equipments  used  by  a  physician,  surgeon,  constable  or  min- 
ister of  the  gospel  in  the  legitimate  practice  of  his  profession  or 
business,  with  food  for  such  oxen,  horses  or  mules  for  one  month. 
One  fishing  boat  and  net,  not  exceeding  the  total  value  of  five  hun- 
dred dollars,  the  property  of  any  fisherman,  by  the  lawful  use  of 
which  he  earns  a  livelihood.  The  cabin  or  dwelling  of  a  miner,  not 
exceeding  in  value  the  sum  of  five  hundred  dollars;  also,  his  sluices, 
pipes,  hose,  windlass,  derrick,  cars,  pumps,  tools,  implements  and 
appliances,  necessary  for  carrying  on  any  mining  operations,  not 
exceeding  in  value  the  aggregate  sum  of  five  hundred  dollars;  and 


FACTOR  135 


two  horses,  mules,  or  oxen,  with  their  harness  and  food  for  such 
horses,  mules  or  oxen  for  one  month,  when  necessary  to  be  used 
in  any  whim,  windlass,  derrick,  car,  pump,  or  hoisting  gear;  and 
also  his  mining  claims  actually  worked  by  him,  not  exceeding  in 
value  the  sum  of  one  thousand  dollars.  Seamen  and  sea-going  fish- 
ermen's wages  and  earnings  not  exceeding  three  hundred  dollars. 
Nautical  instruments  and  wearing  apparel  of  any  master,  officer  or 
seaman  of  any  steamer  or  other  vessel. 

All  machinery,  tools  and  implements  in  and  for  boring,  sinking, 
putting  down  and  constructing  surface  or  artesian  wells;  also,  the 
engines  necessary  for  operating  such  machinery,  implements,  tools, 
etc.;  also,  all  trucks  necessary  for  the  transportation  of  such  ma- 
chinery, tools,  implements,  etc.,  to  the  value  of  one  thousand  dol- 
lars. Shares  of  stock  in  any  building  and  loan  association  to  the 
value  of  one  thousand  dollars.  All  money  received  by  any  person, 
a  resident  of  the  State,  as  a  pension  from  the  United  States  govern- 
ment, whether  the  same  shall  be  in  the  actual  possession  of  such 
pensioner,  or  deposited,  loaned  or  invested  by  him.  Money  obtained 
from  any  policy  of  insurance  upon  a  homestead  is  exempt  from  exe- 
cution, and  cannot  be  attached.  The  family  residence,  with  land 
and  appurtenances  thereof,  when  declaration  of  homestead  has 
been  made  thereon,  to  the  value  of  five  thousand  dollars  for  head 
of  family,  and  one  thousand  dollars  for  any  other  person. 

No  article  or  species  of  property  mentioned  above  is  exempt  from 
execution  issued  upon  a  judgment  recovered  for  its  purchase  price; 
or  upon  a  judgment  of  foreclosure  of  a  mortgage  or  other  lien 
thereon. 

Expert  is  one  who  has  special  knowledge  of  any  science,  trade  or 
occupation  (to  be  determined  in  each  case  by  examination  before 
the  judge  who  tries  the  case  where  the  expert  is  desired  to  testify) . 
Persons  have  been  considered  experts  to  testify  to  the  following  mat- 
ters: Method  of  tying  lumber  for  hoisting;  of  moving  boilers;  or  load- 
ing live  stock,  or  handling  heavy  stones;  scrubbing  in  steam  plant; 
stopping  of  electric  car;  structure  of  jetty;  soundness  of  rope;  size 
of  nut  or  bolt,  and  as  to  use  of  derricks;  doctors;  handwriting; 
scientists;  contractors;  etc. 

A  Factor  (See  Agency  Guaranty)  is  an  agent  who  (in  the  pursuit 
of  an  independent  calling),  (1)  is  employed  by  another  to  sell  prop- 
erty for  him,  and  (2)  who  is  given  possession  or  control  of  such  prop- 


136  FALSE  IMPRISONMENT 


erty,  (3)  or  who  is  authorized  to  receive  payment  from  the  purchaser 
for  the  property.  He  must  obey  the  instructions  of  his  principal  to 
the  same  extent  as  an  employee,  notwithstanding  any  advances  of 
money  which  he  may  have  made  to  his  principal  upon  the  purchase 
price  of  the  goods  consigned  to  him,  except  that  if  his  principal 
forbids  him  to  sell  at  the  market  price — he  may,  nevertheless,  sell 
for  his  ovm  reimbursement — after  giving  notice  to  his  principal  of 
his  intention  to  do  so,  with  the  time  and  place  of  sale — and  also 
proceeding  in  all  respects  as  if  the  property  were  pledged  to  him. 
See  Pledge.  He  may  sell  property  consigned  to  him  on  such  credit 
as  is  usual;  but  if  he  has  once  agreed  with  the  purchaser  upon  such 
terms,  he  may  not  extend  them.  One  who  charges  his  principal 
with  a  guaranty  commission  on  a  sale,  thereby  assumes  absolutely 
to  pay  the  price  when  it  falls  due,  as  if  it  were  a  debt  of  his  own, 
and  not  as  a  mere  guarantor  for  the  purchaser  but  he  does  not  by  so 
doing  assume  any  additional  responsibility  for  the  safety  of  his  re- 
mittance of  the  proceeds.  One  who  receives  property  for  sale, 
under  a  general  agreement  or  usage  to  guarantee  the  sales  or  the 
remittance  of  the  proceeds,  cannot  relieve  himself  from  responsibility 
for  it  without  the  consent  of  his  principal.     See  Guaranty.) 

In  addition  to  the  authority  of  agents  in  general  (see  Agents) 
a  factor  has  actual  authority  from  his  principal,  unless  specially 
restricted  (a)  to  insure  property  which  is  consigned  to  him  unin- 
sured; (b)  to  sell,  on  credit,  anything  intrusted  to  him  for  sale — 
except  such  things  as  it  is  contrary  to  usage  to  sell  on  credit;  but 
not  to  pledge,  mortgage,  or  barter  such  goods;  (c)  to  delegate  his 
authority  to  his  partner  or  servant, — but  not  to  any  person  in  an 
independent  employment.  A  factor  has  ostensible  authority  to 
deal  with  the  property  of  his  principal  as  his  own,  in  transactions 
with  persons  not  having  notice  of  the  actual  ownership. 

Farm  Name:     See  Trade  Mark. 

False  Arrest:     See  False  Imprisonment;  Arrest. 

FALSE  IMPRISONMENT  is  the  unlavirful  and  total  restraint  of 
the  liberty  of  a  person.  One  who  is  arrested  and  detained  by  an- 
other, without  legal  authority  (see  Arrest),  is  said  to  be  falsely 
imprisoned.  The  imprisonment  is  any  prevention  of  the  movement 
of  a  person  from  place  to  place,  or  his  full  action  according  to  his 
pleasure  and  will.     If  the  imprisonment  is  lawful,  it  could  not  have 


FINDINGS  137 


been  malicious;  and  if  malicious,  it  could  not  have  been  lawful.  See 
Malicious  Prosecution. 

Feeding  Stuffs:     See  Commercial  Feeding  Stuffs. 

Fences:  See  Real  Estate,  HIS;  Estrays;  Liens.  Each  adjoining 
owner  owns  one-half  of  the  wall  which  is  upon  his  land,  subject  to 
the  easement  in  the  other,  to  use  the  wall  as  a  party  wall  between 
two  buildings.  Adjoining  owners  are  mutually  bound  to  equally 
maintain,  first:  The  boundaries  and  monument  between  them,  and; 
second:  The  fences  between  them,  unless  one  of  them  chooses  to  let 
his  land  lie  without  fencing.  If  he  afterward  encloses  it,  he  must 
refund  to  the  other  a  just  proportion  of  the  value  (at  that  time)  of 
any  division  fence  made  by  the  latter.  Any  fence  or  other  struc- 
ture in  the  nature  of  a  fence,  unnecessarily  exceeding  ten  feet  in 
height,  maliciously  erected  or  maintained  for  the  purpose  of  annoying 
the  owner  or  occupant  of  adjoining  property,  shall  be  deemed  a  pri- 
vate nuisance,  but  one  probably  may  erect  a  structure  of  any  height 
if  entirely  upon  his  own  land. 

Fictitious  Name:      See  Name. 

Findings:  See  Deposit;  Liens;  Storage;  Estrays;  Pledges.  One 
who  finds  a  thing  lost  is  not  bound  to  take  charge  of  it,  but  if  he 
does  so  he  is  thenceforward  a  depositary  for  the  owner,  with  th« 
rights  and  obligations  of  a  depositary  for  hire.  If  the  finder  of  a 
thing,  other  than  a  domestic  animal  takes  possession  of  it,  or  if 
a  person  saves  any  such  animal  from  drowning  or  starvation,  he  must, 
within  a  reasonable  time,  inform  the  owner  of  it,  if  known,  and 
make  restitution  to  him  upon  demand,  without  compensation,  ex- 
cept a  reasonable  charge  for  saving  and  caring  for  it.  If  the  owner 
is  not  known  to  such  finder  or  saver,  he  must,  within  five  days,  file 
an  affidavit  with  the  justice  of  the  peace  of  the  county  whose  ofiice 
is  nearest  to  the  place  of  such  finding  or  saving,  particularly  de- 
scribing the  property  and  the  time,  place,  and  circumstances  under 
which  it  was  found  or  saved.  Such  justice  must  summon  three  dis- 
interested persons  to  appraise  the  property.  They,  or  a  majority 
of  them,  must  make  two  lists  of  the  valuation  and  description  of 
the  property,  by  them  verified,  and  deliver  one  of  such  lists  to  the  jus- 
tice of  the  peace,  to  be  kept  by  him  on  file  in  his  office,  and  the 
other  list  must  be  delivered  to  such  finder  or  saver,  who  must,  with- 
in five  days  thereafter,  cause  it  to  be  filed  for  record  in  the  office  of 
the  county  recorder  of  the  county,  who  must  record  it  in  a  book 


138  FIRE 


known  as  the  "Estray  and  Lost  Property  Book."  The  finder  of  a 
thing  may,  in  good  faith,  before  giving  up,  require  reasonable  proof 
of  ownership  from  any  person  claiming  it.  He  is  entitled  to  com- 
pensation for  all  expenses  necessarily  incurred  by  him  in  its  preser- 
vation, and  for  any  other  service  necessarily  by  him  about  it,  and 
to  a  reasonable  reward  for  keeping  it.  He  may  exonerate  himself 
from  liability  at  any  time  by  placing  it  on  storage  with  any  respon- 
sible person  of  good  character,  at  a  reasonable  expense.  He  may 
sell  it  (if  it  is  a  thing  which  is  commonly  the  subject  of  sale),  when 
the  owner  cannot,  within  reasonable  diligence,  be  found,  or,  being 
found,  refuses  upon  demand  to  pay  the  lawful  charges  of  the  finder, 
in  the  follov/ing  cases:  1.  When  a  thing  is  in  danger  of  perishing, 
or  of  losing  the  greater  part  of  its  value;  or,  2.  When  the  lawful 
charges  of  the  finder  amount  to  two-thirds  of  its  value.  A  sale  un- 
der the  provisions  of  the  last  paragraph  must  be  made  in  the  same 
manner  as  the  sale  of  a  thing  pledged. 

If  no  owner  appears  within  six  months  after  such  finding  or  saving 
and  offers  reasonable  proof  of  his  ownership,  and  compensates,  or 
in  good  faith  offers  to  compensate,  the  finder  or  saver  for  the  ex- 
pense necessarily  incurred  by  him,  then  such  property  vests  in  such 
finder  or  saver,  unless  it  is  of  a  greater  value  than  twenty  dollars. 
If  of  such  greater  value,  he  must  publish  a  copy  of  such  verified  list 
for  three  successive  weeks  in  some  newspaper  of  general  circulation 
published  in  the  county,  and  if  the  owner  does  not,  within  one  year 
after  the  completion  of  such  publication,  prove  the  property  and 
pay,  or  in  good  faith  offer  to  pay  all  charges  on  it,  the  title  of  it  vests 
in  such  finder  or  saver.  If  the  finder  or  saver  of  the  property  does 
not  comply  with  the  provisions  of  former  sections;  or  if  {though  he 
does  so  comply),  he  refuses  to  surrender  the  property  to  an  owner 
who  has  made  reasonable  proof  of  ownership,  and  paid  (or  in  good 
faith  offered  to  pay),  all  legal  charges  on  it,  he  is  liable  to  the  owner 
for  double  the  value  of  the  property,  and  the  owner  may  exonerate 
himself  from  all  liability  arising  out  of  such  property  by  surrendering 
or  offering  to  surrender  it  in  satisfaction  of  it.  These  provisions 
have  no  application  to  things  which  have  been  intentionally  left  by 
their  owners. 

Fire:  See  Act  of  God;  Lease,  under  Landlord  and  Tenant;  De- 
posit; Storage;  Warehouseman;  Arson;  Insurance. 

Every  person  who  starts  a  fire  in  hay,  grain,  stubble,  or  grass. 


FIXTURES  139 


without  first  carefully  providing,  by  plowing  or  otherwise,  for  the 
keeping  of  said  fire  within  and  upon  the  premises  upon  which  it  is 
started  or  get  out,  and  by  reason  of  the  non-providing  of  such  bar- 
rier any  property  of  an  adjoining  or  contiguous  resident  or  owner  is 
injured,  damaged,  or  destroyed,  is  guilty  of  a  misdemeanor.  He  is 
also  liable  in  treble  damages,  if  the  fire  escapes  to  another's  prem- 
ises. A  railroad  company  is  not  an  insurer  at  all  events  against  the 
consequences  of  fire  set  by  its  locomotives;  it  is  only  liable  for  fires 
negligently  caused  by  it.  The  facts  upon  which  the  liability  of  the 
railroad  rests  must  be  proved  by  satisfactory  evidence;  they  cannot 
be  established  by  mere  conjecture. 

If  a  building,  partly  completed,  is  destroyed  by  fire,  the  loss  falls 
upon  the  contractor — if  the  contract  was  one  where  it  must  be  com- 
pleted before  payment;  but  if  he  had  received  some  of  the  money, 
he  could  not  have  the  balance  until  he  completed  the  building  as  far 
as  he  had  agreed  to  in  order  to  receive  the  next  payment. 

Fixtures:     See  Improvements;  Real  Estate;  Landlord  and  Tenant. 

A  fixture  is  an  article  of  personal  property  affixed  to  the 
freehold;  when  a  person  affixes  his  property  to  the  land  of  an- 
other, without  an  agreement  permitting  him  to  remove  it,  the  thing 
affixed  belongs  to  the  owner  of  the  land,  unless  he  chooses  to  re- 
quire the  former  to  remove  it.  But  a  tenant,  at  any  time  during 
the  continuation  of  his  term,  may  remove  from  the  leased  premises, 
anything  which  to  affixed  to  the  premises,  for  the  purposes  of  trade, 
manufacture,  ornament  or  domestic  use,  if  the  removal  can  be  ef- 
fected without  injury  to  the  premises,  or  unless  the  thing  has 
become  an  integral  part  of  the  premises,  because  of  the  manner  in 
which  it  was  affixed.  In  this  State,  the  following  articles  have  been 
decided  to  be  permanently  affixed:  Sluice  boxes,  flumes,  hose, 
pipes,  railway  tracks,  cars,  blacksmith  shops,  mills,  and  all  other 
machinery  or  tools  used  in  working  or  developing  a  mine;  A  store 
front  consisting  of  heavy  plate  glass  and  marble;  Engine  and  boil- 
ers, fastened  to  the  land  by  bolts  and  nuts,  to  timbers  imbedded  in 
the  soil;  machines,  such  as  soap  kettles,  boilers,  etc.,  of  perma- 
nent character;  Monument  erected  in  a  public  park;  Mosquito 
screens  attached  to  a  hotel;  A  pump  planted  on  the  ground  and 
connected  with  a  pipe  for  water;  Tanks  with  a  water  filter  in  a 
hotel;  Gas  fixtures. 

The  following  are  temporary  only  and  may  be  removed:    Cas- 


140  FOOD  WAREHOUSEMAN 


ing  in  an  oil  well;  Furnace  in  a  house,  with  its  pipes;  A  portable 
fence;  The  name  of  a  hotel;  A  wharf  constructed  below  low  water 
mark;  A  livery  stable  standing  upon  mud  sills;  A  house  and  barn 
erected  to  enable  persons  to  hunt  and  fish  upon  certain  premises; 
A  building  erected  as  an  office  and  a  place  for  employees  to  sleep; 
A  conservatory  used  by  a  flower  vendor;  A  building  erected  to 
cover  or  contain  machinery,  or  for  the  purpose  of  a  saloon. 

If  a  tenant  has  a  written  agreement  permitting  him  to  remove 
fixtures,  he  may  take  them  out  within  a  reasonable  time  AFTER 
the  expiration  of  his  term;  but  if  they  are  trade  fixtures  only, 
and  there  is  no  such  agreement,  he  must  remove  them  BEFORE 
his  term  expires.  If  a  tenant  does  not  remove  the  fixtures  which 
he  has  been  given  the  right  to  do,  but  instead  makes  a  new  lease 
which  says  nothing  about  fixtures,  he  cannot  remove  those  fixtures 
at  the  expiration  of  the  second  lease.  When  he  made  the  new  lease, 
he  was  in  the  same  position  as  if  the  landlord  had  leased  the  fix- 
tures to  him,  together  with  the  land  or  the  buidings. 

Fish,  Right  to:     See  Real  Property. 

Flags:  Neither  the  flag  of  the  United  States  nor  the  flag  of  Cali- 
fornia must  be  desecrated,  mutilated,  nor  made  improper  use  of, 
and  the  flag  of  the  United  States  must  be  hoisted  above  each  school- 
house  during  each  session  of  school. 

The  bear  flag  is  selected  and  adopted  as  the  state  flag  of  Califor- 
nia. 

Flying  Machines:     See  Aviation. 

F.  O.  B,:  An  abbreviation  for  "free  on  board,"  used  to  designate 
that  the  commodity  is  to  be  delivered  on  board  cars  or  ship,  without 
cost  to  the  buyer.  "F.  O.  B.  SS.  Jones"  does  not  mean  that  the  ar- 
ticles are  to  be  loaded  on  board  the  ship,  but  that  they  are  to  be 
delivered  at  the  dock,  alongside  the  ship. 

Food  Warehouseman  (1919  Statute):  See  Warehouseman; 
Weights  and  Measures;  Food;  Monopoly. 

Sec.  1.  The  term  "food  commodities"  as  used  in  this  act  shall 
be  construed  to  mean  all  products,  stuffs,  preparations,  substances, 
or  articles  which  are  customary  or  proper  for  food  for  human  be- 
ings, and  shall  include  meat  and  meat  products,  fruit,  vegetables, 
fresh   fish,   shellfish,   game,  poultry,   eggs,   butter,   cheese   and   milk. 

Sec.  2.  The  term  "commission"  when  used  in  this  act  means 
tha    railroad    commission    of    the    State    of    California.      The    term 


FOOD  WAREHOUSEMAN  141 


"commissioner"  when  used  in  this  act  means  one  of  the  members 
of  the  commission.  The  term  "corporation"  when  used  in  this  act, 
includes  a  corporation,  a  company,  an  association  and  a  joint  stock 
association.  The  term  "person"  when  used  in  this  act,  includes  an 
individual,  a  firm  and  a  co-partnership.  The  term  "food  ware- 
houseman" as  used  in  this  act  shall  be  construed  to  mean  and  shall 
include  every  person,  or  corporation,  their  lessees,  trustees,  re- 
ceivers or  trustees  appointed  by  any  court  whatsoever  owning, 
controlling:,  operating,  or  managing  any  building,  structure,  ware- 
house, elevator  or  plant  in  which  food  commodities,  regularly  re- 
ceived from  the  public  generally,  are  stored  for  compensation,  In- 
cluding cold  storage  plants  and  refrigerating  plants,  but  not  In- 
cluding private  homes,  hotels,  restaurants  or  exclusively  retail  es- 
tablishments or  others  not  storing  articles  of  food  for  other  per- 
sons for  compensation.  Every  person,  or  corporation  controlling, 
operating,  or  managing  any  building,  structure,  warehouse,  elevator, 
or  plant  as  aforesaid,  shall  be  deemed  to  be  engaged  in  the  storage 
of  food  commodities  within  the  meaning  of  this  act. 

Sec.  3.  Every  food  warehouseman  doing  business  in  the  State 
of  California  is  hereby  declared  to  be  a  public  utility,  and  subject 
to  the  jurisdiction,  control  and  regulation  of  the  railroad  commis- 
sion of  the  State  of  California.  No  food  warehouseman  shall  en- 
gage in  the  storage  of  food  commodities  in  the  State  of  California, 
except  in  accordance  with  these  provisions. 

Sec.  4.  It  shall  be  unlawful  for  any  food  warehouseman,  doing 
business  in  the  State  of  California,  to  discriminate,  attempt  to  dis- 
criminate between  persons,  firms  or  corporations  offering  food 
commodities  for  storage  or  desiring  to  avail  themselves  of  the 
warehousing  or  storage  facilities  afforded  by  such  food  warehouse- 
man ;  or  to  accept  food  commodities  from  any  person,  firm  or  cor- 
poration at  rate  or  charges  exacted  or  received  from  other  persons, 
fiiTTis  or  corporations  for  the  same  or  substantially  similar  ware- 
housing or  storage  service;  or  to  grant,  allow,  or  deduct  from  the 
rates  or  charges  exacted  or  received  from  any  person,  firm,  or 
corporation  any  rebate,  discount,  deduction,  concession,  refund,  or 
remittance  not  granted  and  allowed  to  all  other  persons,  firms,  or 
corporations  under  the  same  or  substantially  similar  circumstances 
nnd  conditions;  or  to  make  or  give,  or  attempt  to  make  or  give,  any 
preference    or   advantage   to   any   person,    firm    or   corporation   not 


142  FOOD  WAREHOUSEMAN 


made  or  given  to  every  other  person,  firm  or  corporation;  or  by 
any  scheme  of  rebates,  discounts,  deduction?,  concessions,  refunds, 
remittances,  collateral  contracts,  discriminating  charges,  discrimin- 
ating rates,  or  in  the  service  or  facilities  afforded,  or  by  any  other 
device  whatsoever,  discriminate  or  show  preference,  or  attempt  to 
discriminate  or  show  preference,  between  persons,  firms,  or  cor- 
porations offering  food  commodities  for  storage;  or  by  any  of  the 
practices  or  devices  aforesaid  to  monopolize  or  attempt  to 
monopolize,  or  combine,  or  conspire  with  others  to  monopolize  in 
any  locality  the  business  of  storing  food  commodities;  and  it  shall 
likewise  be  unlawful  for  any  person,  firm  or  corporation  to  solicit, 
accept,  receive  or  attempt  to  obtain  from  any  food  warehouseman 
any  rebate,  discount,  deduction,  concession,  refund,  or  remittance, 
or  to  solicit,  accept,  receive,  or  attempt  to  obtain  from  any  food 
warehouseman,  any  preference,  or  advantage,  either  in  rates  or 
charges,  or  in  service  or  facilities  afforded. 

Sec.  5.  Every  food  warehouseman  doing  business  in  the  State  of 
California  shall  file  with  the  railroad  commission  within  such  time 
and  in  such  form  as  the  commission  may  designate  and  shall  also 
print  and  keep  open  to  public  inspection  at  each  and  every  build- 
ing, structure,  warehouse,  elevator,  or  plant  for  the  storing  or 
warehousing  of  food  commodities  maintained  by  him  in  said  state, 
schedules  showing  all  rates  and  charges,  which  are  in  force  for 
warehousing  and  storage  services  of  every  description,  including 
sorting,  handling,  weighing,  elevating,  and  packing  charges  ,and 
all  charges  directly  or  indirectly  connected  with  such  services,  to- 
gether with  all  rules  and  regulations  which  in  any  manner  affect  or 
relate  to  rates  or  charges,  and  showing  plainly  when  the  same  be- 
come effective,  such  rates  to  be  uniform  in  their  operation  and  to 
apply  with  equal  force  and  effect  to  all  persons,  firms  or  corpora- 
tions dealing  with  said  food  warehouseman.  The  railroad  commis- 
sion shall  have  power  after  hearing  to  fix  and  determine  any  such 
rate,  charge,  rule  or  regulation,  and  prescribe  by  order  such 
changes  in  the  form  of  the  schedules  referred  to  in  this  section  as 
it  may  find  to  be  just  and  reasonable.  Unless  the  commission 
otherwise  orders,  no  change  shall  be  made  by  any  food  warehouse- 
man in  any  rate  or  charge,  or  in  any  rules  or  regulations  affecting 
rates  or  charges,  except  by  pel-mission  of  the  railroad  commission 
after  proper  notice.     The  commission,  for  good  cause   shown,  may 


FOOD   WAREHOUSEMAN  143 


allow  changes  without  requiring  the  notice,  by  an  order  specifying 
the  changes  so  to  be  made  and  the  time  when  they  shall  take  effect, 
and  the  manner  in  which  they  shall  be  filed  and  published.  No  food 
warehouseman  shall  engage  in  the  business  of  storing  food  com- 
modities unless  the  rates  and  charges  upon  which  the  same  are 
stored  are  filed  and  open  to  public  inspection  as  aforesaid.  No  food 
warehouseman  shall  refund  or  remit  in  any  manner  or  by  any 
device,  any  portion  of  the  rates  or  charges  filed  and  open  to  public 
inspection  as  aforesaid,  or  demand,  collect,  or  receive,  directly  or 
indirectly,  from  any  person,  firm  or  corporation,  any  different  sum 
for  warehousing  or  storage  services  than  the  rates  and  charges  filed 
and  open  to  public  inspection  as  aforesaid,  or  directly  or  indirectly 
make  any  charge  for  such  services  not  shown  by  the  schedule 
aforesaid;  nor  shall  any  person,  firm,  or  corporation  solicit,  accept, 
receive,  or  attempt  to  obtain  from  any  food  warehouseman  any 
rate  or  charge  not  filed  and  open  to  public  inspection  as  aforesaid. 
Sec.  6.  Every  contract,  expressed  or  implied,  by  any  person, 
firm  or  corporation  in  violation  of  the  provisions  of  section  four  or 
section  five  of  this  act,  is  declared  to  be  illegal  and  to  be  utterly 
void  and  no  recovery  shall  be  had  on  it. 

Sec.  8.  The  attorney  general  of  the  State  of  California  is 
authorized  and  directed,  whenever  he  has  reasonable  grounds  to 
believe  that  any  person,  firm  or  corporation  has  knowingly  ac- 
cepted or  received  from  any  food  warehouseman,  directly  or  in- 
directly, any  rebate,  discount,  deduction,  concession,  refund  or  re- 
mittance from  the  rates  or  charges  filed  and  open  to  public  inspec- 
tion as  in  section  five,  to  prosecute  a  civil  action  in  the  name  of 
the  people  of  the  State  of  California  in  the  proper  court  to  collect 
three  times  the  total  sum  of  such  rebates,  discounts,  deductions, 
concessions,  refunds,  or  remittances  so  accepted  or  received  within 
three  years  before  the  commencement  of  such  action. 

Sec.  9.  Any  person,  firm  or  corporation  may  maintain  an  action 
to  enjoin  a  continuance  of  any  act  or  acts  in  violation  of  section 
four  or  section  five,  or  of  any  order,  rule  or  regulation  of  the  rail- 
road commission,  and,  if  injured  by  it,  for  the  recovery  of  dam- 
ages in  an  amount  equal  to  three  times  the  amount  of  actual 
damages  sustained.  If  in  such  action,  the  court  shall  find  that  the 
defendant  is  violating  section  four  or  section  five,  or  any  order, 
rule   or  regulation  of  the  railroad   commission,   it   shall   enjoin   the 


144  FOOD  WAREHOUSEMAN 


defendant  from  a  continuance  of  such  violation,  and  it  shall  not  be 
necessary  to  allege  or  prove  actual  damage  to  plaintiff  in  addition 
to  it. 

Sec.  10.  Any  person  or  persons,  or  corporation,  who,  or  which 
shall  violate  section  four  or  section  five,  or  any  order,  rule,  or 
regulation  of  the  railroad  commission,  or  who  shall  procure,  aid  or 
abet  any  person,  firm  or  corporation  in  any  such  violation  of  it, 
shall,  if  a  person,  be  punished  by  a  fine  not  exceeding  one  thou- 
sand dollars,  or  by  imprisonment  in  a  county  jail  not  exceeding 
six  months  or  by  both  such  fine  and  imprisonment,  and,  if  a  cor- 
poration, by  a  fine  not  exceeding  three  thousand  dollars. 

Sec.  12.  The  legislature  hereby  declares  that  the  purpose  of 
this  act  is  to  safeguard  the  public  against  the  creation  and  per- 
petuation of  monopolies,  and  to  foster  and  encourage  competition, 
by  prohibiting  unfair  and  discriminating  practices  by  which  fair 
and  honest  competition  is  destroyed.  The  legislature  hereby  further 
declares  that  food  warehousemen,  as  defined  in  section  two  of  this 
act,  are  engaged  in  a  business,  tending  to  monopoly,  and  that  by 
reason  of  such  monopolistic  tendency  and  by  reason  of  its  vital 
connection  with  the  distribution  of  public  necessities,  such  busi- 
ness is  clothed  with  a  public  interest  and  subject  to  public  regulation 
and  control  for  the  public  welfare  as  a  public  utility,  as  in  this  act 
provided.  This  act  shall  be  liberally  construed  that  its  beneficial 
purpose  may  be  subserved. 

Forcible  Detainer:  See  Landlord  and  Tenant;  Unlawful  Detainer, 
Every  person  is  guilty  of  a  forcible  detainer  who  either:  1.  By 
force,  or  by  menaces  and  threats  of  violence,  unlawfully  holds  and 
keeps  possession  of  any  real  property,  whether  the  same  was  ac- 
quired peaceably  or  otherwise;  or  2.  Who,  in  the  night-time,  or  dur- 
ing the  absence  of  the  occupancy  of  any  lands,  unlawfully  enters 
upon  real  property,  and  who,  after  demand  made  for  the  surrender 
of  it,  for  the  period  of  five  days,  refuses  to  surrender  it  to  such 
former  occupant.  The  occupant  of  real  property  is  one  who,  within 
five  days  preceding  such  unlawful  entry,  was  in  the  peaceable  and 
undisturbed  possession  of  such  lands. 

Forcible  Entry:  See  Forcible  Detainer;  Unlawful  Detainer;  Land- 
lord and  Tenant.  Every  person  is  guilty  of  a  forcible  entry  who 
either:  1.  By  breaking  open  doors,  or  other  parts  of  a  house,  or 
by  any  kind  of  violence  or  circumstance  of  terror  enters  upon  or 


FRAUD  145 


into  any  real  property.  2.  Who,  after  entering  peaceably  upon 
real  property,  turns  out  by  force,  threats,  or  menacing  conduct,  the 
party  in  possession.  If  there  is  no  evidence  that  the  entry  upon 
the  premises  was  accompanied  by  any  kind  of  violence  or  circum- 
stances of  terror,  or  that  the  party  in  possession  was  turned  out  by 
force,  threats  or  menacing  conduct,  there  is  no  forcible  entry;  even 
if  the  party  in  possession  was  there  unlawfully — the  five  day  notice 
must  be  served  upon  him  before  commencing  an  action.  No  damages 
can  be  recovered,  unless  the  possession  of  the  premises  is  also  re- 
covered. 

Foreclosure:     See  Mortgages;  Chattel  Mortgages;  Deed. 

Foreign  Corporations:      See  Corporations. 

Foreign  Bill  of  Exchange:  See  Negotiable  Instruments,  lf3210, 
3211,  3233. 

Forgery:  See  Crimes;  Checks;  Negotiable  Instruments,  113104. 
Every  person  who  has  in  his  possession,  or  receives  from  any  other 
person,  any  forged  promissory  note  or  bank  bill,  or  bills,  for  the 
payment  of  money  or  property,  with  the  intention  to  pass  the  same. 
or  to  permit,  cause  or  procure  the  same  to  be  uttered  or  passed,  with 
the  intention  to  defraud  any  person,  knowing  the  same  to  be  forged 
or  counterfeited,  or  has  or  keeps  in  his  possession  any  blank  or 
unfinished  note  or  bill  for  payment  of  money  or  property,  made 
to  be  issued  by  any  incorporated  bank  or  banking  company,  with 
intention  to  fill  up  and  complete  such  blank  or  unfinished  note  or 
bill,  or  to  permit,  or  cause,  or  procure  the  same  to  be  filled  up  and 
completed  in  order  to  utter  or  pass  the  same,  or  to  permit,  or  cause, 
or  procure  the  same  to  be  uttered  or  passed  to  defraud  any  person, 
is  punishable  by  imprisonment  in  the  state  prison  for  not  less  than 
one  year  nor  more  than  fourteen  years. 

Fraud:  See  Negotiable  Instruments,  1J3136;  Rescission;  Insurance; 
Real  Estate;  Statute  of  Frauds;  Assignments;  Contracts;  Transfer; 
Bill  of  Lading,   2130b. 

Fraud  is  either  actual  or  constructive.  Actual  Fraud  is  always  a 
question  of  fact  and  (as  applied  to  Contracts)  consists  in  any  one 
of  the  following  acts,  committed  by  a  party  to  the  contract  (or  with 
his  connivance)  with  intent  to  deceive  any  other  party  to  the  con- 
tract, or  to  induce  that  other  party  to  enter  into  the  contract  (a) 
One  who  does  not  believe  a  fact  to  be  true,  but  who  nevertheless 
suggests  it  to  be  true,  as  a  fact;   (b)   a  positive  assertion  of  that 


146  GUARANTY 


which  is  not  true,  by  a  person  who  believes  it  to  be  true,  but  yet 
made  in  a  manner  not  warranted  by  his  information  (c)  suppressing 
that  which  is  true,  by  one  having  knowledge  or  belief  of  the  fact;  (d) 
a  promise  made  without  any  intention  of  performing  it;  (e)  any 
other  act  fitted  (expected)  to  deceive.  Constructive  Fraud  consists 
(a)  in  any  breach  of  duty,  which  gains  an  advantage  to  the  person 
in  fault,  or  any  one  claiming  under  him  (even  without  any  fraudu- 
lent intent)  by  misleading  another  to  his  prejudice,  or  to  the  preju- 
dice of  any  one  claiming  under  him;  (b)  in  any  act  or  omission 
which  the  law  specially  declares  to  be  fraudulent,  without  respect 
to  actual  fraud. 

Freight:     See  Bottomry;  Carriers;  Warehouseman. 

Fungible  Goods:     See  Warehouse  Receipts. 

Garage  Man:  See  Liens;  Accretion;  Personal  Property;  Automo- 
bile Law;  Sales;  Installment  Contracts. 

Garnishment:     See  Attachment. 

Gas  Ciaims:     See   Mining  Law. 

Gifts:     See  Personal  Property. 

Gift  Deed:      See  Deeds;   Gifts. 

Goods:  See  Personal  Property;  Warehouseman;  Warehouse  Re- 
ceipts; Fungible  Goods. 

Good-V/ill  of  a  business  is  the  expectation  of  continued  patron- 
age, but  it  does  not  include  the  right  to  use  the  name  of  any 
person  from  whom  it  was  acquired.  See  Trademarks.  It  is  prop- 
erty, transferable  like  any  other;  and  the  person  transferring  it 
may  also  transfer  with  it  the  right  to  use  the  name  under  which 
the  business  was  conducted.  But  the  good  will  cannot  be  transferred 
separate  from  the  business.  See  Employer  and  Employee;  Personal 
Property.  One  who  sells  the  good  vv^ill  of  a  business  may  agree  with 
the  buyer  to  refrain  from  carrying  on  a  similar  business  within  a 
specified  county,  city,  or  any  part  of  it,  so  long  as  the  buyer  (or 
any  person  deriving  title  to  the  good  will  from  him),  carries  on  a 
like  business  in  that  county. 

Grading  Lien:      See  Mechanics'  Lien,  111191. 

Grant  Deed:     See  Deeds. 

Grazing  Lien:      See   Liens. 

A  Guaranty  is  a  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  person.  A  person  may  become  guarantor  even 
without  the  knowledge  or  consent  of  the  principal.     Where  a  guar- 


GUARANTY  147 


anty  is  entered  into  at  the  same  time  with  the  original  obligation 
or  with  the  acceptance  of  the  latter  by  the  guarantee,  and  forms 
with  that  obligation  a  part  of  the  consideration  to  him,  no  other 
consideration  need  exist.  In  all  other  cases  there  must  be  a  consid- 
eration distinct  from  that  of  the  original  obligation.  Except  as 
prescribed  by  the  next  paragraph,  a  guaranty  must  be  in  writing, 
and  signed  by  the  guarantor;  but  the  writing  need  not  express  a 
consideration. 

A  promise  to  answer  for  the  obligation  of  another,  in  any  of  the 
following  cases,  is  deemed  an  original  obligation  of  the  promisor, 
and  need  not  be  in  writing;  1.  Where  the  promise  is  made  by  one 
who  has  received  property  of  another  upon  an  undertaking  to  apply 
it  pursuant  to  such  promise;  or  by  one  who  has  received  a  discharge 
from  an  obligation  in  whole  or  in  part,  in  consideration  of  such 
promises;  2.  Where  the  creditor  parts  with  value,  or  enters  into 
an  obligation,  in  consideration  of  the  obligation  in  respect  to  which 
the  promise  is  made  in  terms  or  under  circumstances  such  as  the 
party  making  the  promise  is  the  principal  debtor,  and  the  person  in 
whose  behalf  it  is  made  his  surety.  3.  Where  the  promise,  being 
for  a  previous  obligation  of  another,  is  made  upon  the  consideration 
that  the  party  receiving  it  cancels  the  previous  obligation,  accepting 
the  new  promise  as  a  substitute  for  it;  or  upon  the  consideration 
that  the  party  receiving  it  releases  the  property  of  another  from 
a  levy  (or  his  person  from  imprisonment),  under  an  execution  on  a 
judgment  obtained  upon  the  previous  obligation;  or  upon  a  consid- 
eration benefiting  the  promisor,  whether  moving  from  either  party  to 
the  previous  obligation,  or  from  another  person.  4.  Where  a  fac- 
tor undertakes,  for  a  commission,  to  sell  merchandise  and  guaranty 
of  sale.  5.  Where  the  holder  of  an  instrument  for  the  payment  of 
money,  upon  which  a  third  person  is  or  may  become  liable  to  him, 
transfers  it  in  payment  of  a  precedent  debt  of  his  own,  or,  for  a  new 
consideration,  and  in  connection  with  such  transfer  enters  into  a 
promise  respecting  such  instrument.     See  Factor.) 

A  mere  offer  to  guaranty  is  not  binding,  until  notice  of  its  accep- 
tance is  communicated  by  the  guarantee  to  the  guarantor;  but  an 
absolute  guaranty  is  binding  upon  the  guarantor  without  notice  of 
acceptance.  In  a  guaranty  of  a  contract,  the  terms  of  which  are 
not  then  settled,  it  is  implied  that  its  terms  shall  be  such  as  will 
not  expose  the  guarantor  to  greater  risks  than  he  would  incur  un- 


148  GUARANTY 


der  those  terms  which  are  most  common  in  similar  contracts  at 
the  place  where  the  principal  contract  is  to  be  performed.  A  guar- 
anty to  the  effect  that  an  obligation  is  good,  or  is  collectable,  im- 
ports that  the  debtor  is  solvent,  and  that  the  demand  is  collectable 
by  the  usual  legal  proceedings,  if  taken  with  reasonable  diligence. 
A  guaranty,  such  as  is  mentioned  in  the  last  paragraph,  is  not  dis- 
charged by  an  omission  to  take  proceedings  upon  the  principal  debt, 
or  upon  any  collateral  security  for  its  payment,  if  no  part  of  the 
debt  could  have  been  collected  by  it.  In  the  cases  mentioned 
the  removal  of  the  principal  from  the  state,  leaving  no  prop- 
erty in  it  from  which  the  obligation  might  be  satisfied,  is  equivalent 
to  the  insolvency  of  the  principal  in  its  effect  upon  the  rights  and 
obligations  of  the  guarantor.  A  guaranty  is  to  be  deemed  uncon- 
ditional unless  its  terms  import  some  condition  precedent  to  the 
liability  of  the  guarantor.  A  guarantor  of  payment  or  performance 
is  liable  to  the  guarantee  immediately  upon  the  default  of  the  prin- 
cipal, and  without  demand  or  notice.  Where  one  guarantees  a  con- 
ditional obligation,  his  liability  is  commensurate  with  that  of  the 
principal,  and  he  is  not  entitled  to  notice  of  the  default  of  the 
principal,  unless  he  is  unable,  by  the  exercise  of  reasonable  dili- 
gence to  acquire  information  of  such  default  and  the  creditor  has 
actual  notice  of  it.  The  obligation  of  a  guai-antor  must  be  neither 
larger  in  amount  nor  in  other  respects  more  burdensome  than  that 
of  the  principal,  and  if  in  its  terms  it  exceeds  it,  it  is  reducible  in 
proportion  to  the  principal  obligation.  A  guarantor  is  not  liable  if 
the  contract  of  the  principal  is  unlawful;  but  he  is  liable  notwith- 
standing any  mere  personal  disability  of  the  principal,  though  the 
disability  be  such  as  to  make  the  contract  void  against  the  principal. 

A  guaranty  relating  to  a  future  liability  of  the  principal,  under 
successive  transactions,  which  either  continue  his  liability  or  from 
time  to  time  renew  it  after  it  has  been  satisfied,  is  called  a  continu- 
ing guaranty.  A  continuing  guaranty  may  be  revoked  at  any  time 
by  the  guarantor  in  respect  to  future  transactions,  unless  there  is 
a  continuing  consideration  as  to  such  transactions  which  he  doe* 
not  renounce.  , 

A  guarantor  is  exonerated  (except  so  far  as  he  may  be  indemni- 
fied by  the  principal),  if  by  any  act  of  the  creditor,  without  the  con- 
sent of  the  guarantor,  the  original  obligation  of  the  principal  is 
altered   in   any   respect   or   the   remedies   or   rights   of   the   creditor 


GUARANTY  149 


against  the  principal,  in  respect  to  it,  is  in  any  way  impaired  or  sus- 
pended. A  promise  by  a  creditor,  which  for  any  cause  is  void  (or 
voidable  by  him  at  his  option),  does  not  alter  the  obligation  or  sus- 
pend or  impair  the  remedy,  within  the  meaning  of  the  last  paragraph. 
The  rescission  of  an  agreement  altering  the  original  obligation  of  a 
debtor,  or  impairing  the  remedy  of  a  creditor,  does  not  restore  the 
liability  of  a  guarantor  who  has  been  exonerated  by  such  agreement. 
The  acceptance  by  a  creditor,  of  anything  in  partial  satisfaction  of 
an  obligation,  reduces  the  obligation  of  a  guarantor  thereof,  in  the 
same  measure  as  that  of  the  principal,  but  does  otherwise  affect  it. 
Mere  delay  on  the  part  of  a  creditor  to  proceed  against  the  princi- 
pal, or  to  enforce  any  other  remedy,  does  not  exonerate  a  guaran- 
tor. A  guarantor  who  has  been  indemnified  by  the  principal,  is  liable 
to  the  creditor,  to  the  extent  of  the  indemnity,  notwithstanding 
that  the  creditor,  without  the  assent  of  the  guarantor,  may  have 
modified  the  contract  or  released  the  principal.  A  guarantor  is 
not  exonerated  by  the  discharge  of  his  principal  by  operation  of 
law,  without  the  intervention  or  omission  of  the  creditor. 

A  surety  is  one  who  at  request  of  another,  and  for  the  purpose  of 
securing  to  him  a  benefit,  becomes  responsible  for  the  performance 
by  the  latter  of  some  act  in  favor  of  a  third  person,  or  hypothecates 
property  as  security  for  it.  One  who  appears  to  be  a  principal 
(whether  by  terms  of  a  written  instrument  or  otherwise),  may  show 
that  he  is  in  fact  a  surety,  except  as  against  persons  who  have  acted 
on  the  faith  of  his  apparent  character  of  principal.  A  surety  cannot 
be  held  beyond  the  express  terms  of  his  contract  and  if  such  contract 
prescribes  a  penalty  for  its  breach,  he  cannot  in  any  case  be  liable 
for  more  than  the  penalty.  In  interpreting  the  terms  of  a  contract 
of  suretyship,  the  same  rules  are  to  be  obsei-ved  as  in  the  case  of 
other  contracts.  Notwithstanding  the  recovery  of  judgment  by  a 
creditor  against  a  surety,  the  latter  still  occupies  the  relation  of 
surety.  Performance  of  the  principal  obligation,  or  an  offer  of  such 
performance,  duly  made  as  provided  in  the  laws  of  this  State,  exon- 
erates a  surety. 

A  surety  is  exonerated;  (1)  In  like  manner  with  a  guarantor;  (2) 
To  th-e  extent  to  which  he  is  prejudiced  by  any  act  of  the  creditor 
which  would  naturally  prove  injurious  to  the  remedies  of  the  surety 
or  inconsistent  with  his  rights,  or  which  lessens  his  security;  or, 
(3)   To  the  extent  to  which  he  is  prejudiced  by  an  omission  of  the 


150  HABEAS  CORPUS 


creditor  to  do  anything,  when  required  by  the  surety,  which  it  is 
his  duty  to  do.  A  surety  has  all  the  rights  of  a  guarantor,  whether 
he  become  personally  responsible  or  not.  A  surety  may  require 
his  creditors  to  proceed  against  the  principal,  or  to  pursue  any  other 
remedy  in  his  power  which  the  surety  cannot  himself  pursue,  and 
which  would  lighten  his  burden;  and  if  in  such  case  the  creditor 
neglects  to  do  so,  the  surety  is  exonerated  to  the  extent  to  which 
he  is  thereby  prejudiced.  A  surety  may  compel  his  principal  to  per- 
form the  obligation  when  due.  If  a  surety  satisfies  the  principal  ob- 
ligation, or  any  part  thereof,  whether  with  or  without  legal  proceed- 
ings, the  principal  is  bound  to  reimburse  what  he  has  disbursed,  in- 
cluding necessary  costs  and  expenses;  but  the  surety  has  no  claim 
for  reimbursement  against  other  persons,  though  they  may  have 
been  benefited  by  his  act,  except  as  prescribed  by  next  paragraph. 
A  surety,  upon  satisfying  the  obligation  of  the  principal,  is  entitled 
to  enforce  every  remedy  which  the  creditor  then  has  against  the 
principal  to  the  extent  of  reimbursing  what  he  has  expended,  and 
also  to  require  all  his  co-sureties  to  contribute  thereto,  without 
regard  to  the  order  of  time  in  which  they  became  such. 

A  surety  is  entitled  to  the  benefit  of  every  security  for  the  per- 
formance of  the  principal  obligation  held  by  the  creditor,  or  by  a  co- 
surety at  the  time  of  entering  into  the  contract  of  suretyship,  or 
acquired  by  him  afterward,  whether  the  surety  was  aware  of  the 
security  or  not.  Whenever  property  of  a  surety  is  hypothecated 
with  property  of  the  principal,  the  surety  is  entitled  to  have  the 
property  of  the  principal  first  applied  to  the  discharge  of  the  obli- 
gation. A  creditor  is  entitled  to  the  benefit  of  everything  which  a 
surety  has  received  from  the  debtor  by  way  of  security  for  the 
performance  of  the  obligation,  and  may,  upon  a  maturity  of  the 
obligation,  compel  the  application  of  such  security  to  its  satisfac- 
tion. 

Guest:     See  Inn;  Hotel;  Citizens. 

Habeas  Corpus  means  "produce  the  body."  It  is  a  petition  ad- 
dressed to  a  superior  tribunal,  calling  to  the  court's  attention  that  a 
certain  person  is  being  confined  in  prison  illegally — and  stating  the 
reason  for  such  illegality.  It  required  the  person  holding  the  pris- 
oner to  show  cause  why  such  imprisonment  is  legal,  and  usually  is 
sought  to  try  the  validity  of  some  law  or  ordinance.  The  privilege 
•of  the  writ  of  habeas  corpus  shall  not  be  suspended  unless  when,  in 


HIKING  151 


cases  of  rebellion  or  invasion,  the  public  safety  may  require  its  sus- 
pension. 

Hay  Baler:  See  Liens.  The  term  "baler"  or  "presser"  as  re- 
ferred to  in  this  act  shall  mean  the  person,  firm,  association,  or  cor- 
poration owning  or  having  possession  of  or  operating  a  hay  press. 
Any  person  baling  hay  for  compensation  shall  employ  scales  that 
have  been  tested  and  sealed  by  the  sealer  of  weights  and  measures  and 
any  record  of  weight  forming  the  basis  of  settlement  in  the  sale  or 
purchase  of  baled  hay  shall  be  the  true  net  weight  of  such  baled  hay. 
No  baler  or  presser  of  hay  shall  put  or  conceal  in  any  such  bale  of  hay 
anything  whatever  for  the  purpose  of  increasing  the  weight  of  such 
bale  with  intent  to  defraud.  Hay  when  sold,  offered,  or  exposed  for 
sale  shall  be  sold  by  avoirdupois  weight  and  a  ton  shall  consist  of 
two  thousand  pounds  net  weight;  providing,  however,  that  hay  may 
be  sold  by  the  bale  in  which  case  the  net  weight  of  the  bale  shall 
be  indicated  on  a  tag  securely  fastened  to  the  bale.  When  any  hay 
is  shipped  by  a  common  carrier  in  bales  and  where  such  bales  be- 
come broken,  the  approximate  wei^^ht  of  such  broken  bales  shall  be 
included  in  the  total  weight  of  the  hay  shipped.  Any  person,  firm 
or  corporation,  violating  any  of  the  provisions  of  this  act  shall  be 
guilty  of  a  misdemeanor  and  shall  be  punished  by  a  fine  of  not  less 
than  fifty  dollars,  or  more  than  one  hundred  dollars.     (1919  statute.) 

Hiring  is  a  contract  by  which  one  gives  to  another  the  temporary 
possession  and  use  of  property,  other  than  money,  for  reward,  and 
the  latter  agrees  to  return  the  same  to  the  former  at  a  future  time. 
See  Landlord  and  Tenant.  The  products  of  a  thing  hired,  during  the 
hiring,  belong  to  the  hirer.  An  agreement  to  let  upon  hire  binds  the 
latter  to  secure  to  the  hirer  the  quiet  possession  of  the  thing  hired 
during  the  term  of  the  hiring,  against  all  persons  lawfully  claiming 
the  same.  The  hirer  of  a  thing  must  use  ordinary  care  for  its  pres- 
ervation in  safety  and  in  good  condition,  and  he  must  repair  all 
deteriorations  or  injuries  thereto  occasioned  by  his  want  of  ordinary 
care.  When  a  thing  is  let  for  a  particular  pui-pose  the  hirer  must  not 
use  it  for  any  other  purpose;  and  if  he  does,  he  is  liable  to  the  letter 
for  all  damages  resulting  from  such  use,  or  the  letter  may  treat  the 
contract  as  thereby  rescinded.  See  Rescission.  The  letter  of  a 
thing  may  terminate  the  hiring  and  reclaim  the  thing  before  the  end 
of  the  term  agreed  upon.  1.  When  the  hirer  uses  or  permits  a  use 
of  the  thing  hired  in  a  manner  contrary  to  the  agreement  of  the 


152  HOLIDAYS 


parties;  or,  when  the  hirer  does  not,  within  a  reasonable  time  after 
request,  make  such  repairs  as  he  is  bound  to  make. 

The  hirer  of  a  thing  may  terminate  the  hiring  before  the  end  of  the 
term  agreed  upon:  1.  When  the  letter  does  not,  within  a  reasonable 
time  after  request  to  fulfill  his  obligation,  if  any,  as  to  placing  and 
securing  the  hirer  in  the  quiet  possession  of  the  thing  hired,  or  put- 
ting it  into  good  condition,  or  repairing;  or,  2.  When  the  greater  part 
of  the  thing  hired,  or  that  part  which  was  and  which  the  letter  had  at 
the  time  of  the  hiring  reason  to  believe  was  the  material  inducement 
to  the  hirer  to  enter  into  the  contract,  perishes  from  any  other  cause 
than  the  want  of  ordinary  care  of  the  hirer.  The  hiring  of  the 
thing  terminates:  1.  At  the  end  of  the  term  agreed  upon;  2. 
By  the  mutual  consent  of  the  parties;  3.  By  the  hirer  acquiring  a 
title  to  the  thing  hired  superior  to  that  of  the  letter;  or,  4.  By 
the  destruction  of  the  thing  hired.  If  the  hiring  of  a  thing  is  ter- 
minable at  the  pleasure  of  one  of  the  parties,  it  is  terminated  by 
notice  to  the  other  of  his  death  or  incapacity  to  contract.  In  other 
cases  it  is  not  terminated  by  it.  When  the  hiring  of  a  thing  is  ter- 
minated before  the  time  originally  agreed  upon,  the  hirer  must  pay 
the  due  proportion  of  the  hire  for  such  use  as  he  has  actually  made 
of  the  thing,  unless  such  use  is  merely  nominal,  and  of  no  benefit 
to  him.  One  who  lets  personal  property  must  deliver  it  to  the  hirer, 
secure  his  quiet  enjoyment  thereof  against  all  lawful  claimants,  put 
it  into  a  condition  fit  for  the  purpose  for  which  he  lets  it,  and  repair 
all  deteriorations  of  it  not  occasioned  by  the  fault  of  the  hirer 
and  not  the  natural  result  of  its  use.  A  hirer  of  personal  property 
must  bear  all  such  expenses  concerning  it  as  might  naturally  be 
foreseen  to  attend  it  during  its  use  by  him.  All  other  expenses  must 
be  borne  by  the  letter.  If  the  letter  fails  to  fulfill  his  obligations, 
as  prescribed  by  preceding  section,  the  hirer  (after  giving  him 
notice  to  do  so,  if  such  notice  can  conveniently  be  given),  may  ex- 
pend any  reasonable  amount  necessary  to  make  good  the  letter's 
defaults,  and  may  recover  such  amount  from  him.  (See  Landlord 
and  Tenant.) 

Holder  for  Value:  See  Negotiable  Instruments,  113107,  3132 
and  following;  Bill  of  Lading. 

Holidays  are  every  Sunday,  the  first  day  of  January,  twelfth  day 
of  February,  to  be  known  as  Lincoln  day,  twenty-second  day  of 
February,  thirtieth  day  of  May,  fourth    (day)    of  July,  ninth  day 


HOMESTEAD  153 


of  September,  first  Monday  in  September,  twelfth  day  of  October,  to 
be  known  as  "Columbus  day,"  twenty-fifth  day  of  December,  every 
day  on  which  an  election  is  held  throughout  the  State,  and  every 
day  appointed  by  the  president  of  th-e  United  States  or  by  the  gov- 
ernor of  this  state  for  a  public  fast,  thanksgiving  or  holiday.  Every 
Saturday  from  twelve  o'clock  noon  until  twelve  o'clock  midnight  is 
a  holiday  as  regards  the  transaction  of  business  in  the  public  offices 
of  this  state,  and  also  in  political  divisions  of  it,  where  laws,  ordi- 
nances or  charters  provide  that  public  offices  shall  be  closed  on 
holidays;  this  shall  not  be  construed  to  prevent  or  invalidate  the 
issuance,  filing,  service,  execution  or  recording  of  any  legal  process  or 
written  instrument  whatever  on  such  Saturday  afternoons.  When- 
ever any  act  of  a  secular  nature  (except  a  work  of  necessity  or 
mercy),  is  appointed  by  law  or  contract  to  be  performed  upon  a 
particular  day — and  that  day  falls  upon  a  holiday,  such  act  may 
be  performed  upon  the  next  succeeding  business  day,  with  the 
same  effect  as  if  it  had  been  performed  upon  the  day  appointed. 

Holographic  Will:     See  Wills. 

Homestead:  See  Real  Estate;  Community  Property;  Husband 
and  Wife.  A  homestead,  up  to  the  value  of  $5,000,  may  be 
selected  by  (1)  a  husband,  out  of  the  community  property, 
or  out  of  his  separate  property,  or  out  of  his  wife's  separate  prop- 
erty, with  her  consent;  (2)  by  the  wife,  out  of  the  community  prop- 
erty, if  the  husband  has  not  selected  one,  or  out  of  her  separate 
property;  (3)  by  an  unmarried  person,  who  is  the  head  of  a  family, 
selected  from  any  of  his  or  her  property,  up  to  the  value  of  $1000. 
A  property  is  "homesteaded"  by  filing  a  written  declaration  to  that 
effect  in  the  office  of  the  County  Recorder  of  the  county  where  the 
property  is  situated,  stating  the  foregoing  facts — and,  from  the 
time  of  its  filing,  the  property  is  exempt  from  attachment  or  exe- 
cution up  to  the  amounts  given — but  not  for  any  clouds  which  have 
arisen  upon  the  property  before  the  filing.  If  a  deed  stands  in  the 
name  of  both  husband  and  wife,  it  cannot  be  homesteaded,  nor  un- 
less the  party  actually  lives  there,  nor  if  it  consists  of  more  than 
one  house.  But  there  is  no  limit  to  its  size,  as  acreage,  and  may 
consist  of  several  lots,  if  they  join,  and  the  house  is  upon  one  of  them, 
with  the  rest  vacant.  If  a  person  moves  away  from  the  property, 
this  is  not  an  abandonment,  but  a  declaration  of  abandonment  or  a 
grant  deed  to  the  property,  must  be  given  and  recorded. 


154  HUSBAND  AND  WIFE 


Hour  of  Labor:  (See  Children)  Every  person  shall  be  entitled 
to  one  day's  rest  in  seven  (except  in  cases  of  emergency)  ;  all 
laborers,  workmen  or  mechanics  employed  upon  any  public  works, 
ei<^ht  hours  in  one  calendar  day.  This  was  declared  constitutional 
by  the  Supreme  Court. 

Twelve  hours  per  day  is  the  limit  for  drivers,  conductors  and 
gripmen. 

No  conductor,  motorman,  engineer,  fireman,  brakeman,  train 
despatcher,  or  telegraph  operator  shall  remain  on  duty  for  more 
than  sixteen  consecutive  hours.  No  person  despatching  trains  by 
telegraph  or  telephone  shall  work  more  than  nine  hours  in  each 
twenty-four;  nor  shall  tower  men  work  more  than  13  hours  in  24. 
Every  person  employed  by  a  municipal  corporation,  who 
works  more  than  120  hours  in  seven  days,  shall  be  allowed  3  hours 
off  during  each  24,  for  meal  time;  every  person  employed  in  a 
sawmill,  shake  mill,  shingle  mill,  or  logging  camp,  shall  have  at 
least  one  hour  off  for  the  midday  meal. 

On  election  day,  every  employee  shall  be  allowed  three  hours  off, 
in  which  to  go  to  the  polls  to  vote,  and  no  deduction  shall  be  made 
in  his  wages  for  such  time  off. 

No  woman  shall  v/ork  more  than  eight  hours  in  any  one  day,  or 
more  than  48  hours  in  any  week  (except  nurses  or  those  engaged 
in  harvesting,  curing,  canning  or  drying  perishable  fruits  or  veg- 
etables.    (See  Minimum  Wage  Law.) 

Every  person  having  a  minor  child  under  his  control,  either  as  a 
ward  or  an  apprentice,  who,  except  in  vinicultural  or  horticultural 
pursuits,  or  in  domestic  or  household  occupations,  requires  such 
child  to  labor  more  than  eight  hours  in  any  one  day,  is  guilty  of  a 
misdemeanor. 

Husband  and  Wife:  See  Succession;  Women;  Citizens;  Sex;  Real 
Estate;  Homesteads. 

Husband  and  wife  contract  toward  each  other  obligations 
of  mutual  respect,  fidelity,  and  support.  The  husband  is  the  head 
of  the  family.  He  may  choose  any  reasonable  place  or  mode  of 
living,  and  the  wife  must  conform  to  it.  Neither  husband  nor 
wife  has  any  interest  in  the  property  of  the  other,  but  neither  can 
be  excluded  from  the  other's  dwelling.     Either  husband  or  wife  may 


HUSBAND  AND  WIFE  155 


enter  into  any  engagement  or  transaction  with  the  other,  or  with 
eny  other  person,  respecting  property,  which  either  might  if  unmar- 
ried; subject,  in  transactions  between  themselves,  to  the  general 
rules  which  control  the  actions  of  persons  occupying  confidential 
relations  with  each  other,  as  defined  by  the  title  on  trusts.  A  hus- 
band and  wife  can  not,  by  any  contract  with  each  other,  alter  their 
legal  relations,  except  (1)  as  to  property,  and  except  that  (2)  they 
may  agree,  in  writing,  to  an  immediate  separation,  and  may  (3) 
make  provision  for  the  support  of  (a)  either  of  them  and  of  (b) 
their  children  during  such  separation.  The  mutual  consent  of  the 
parties  is  a  sufficient  consideration  for  such  an  agreement. 

A  husband  and  wife  may  hold  property  as  joint  tenants,  tenants 
in  common,  or  as  community  property.  All  property  of  the  wife  (1) 
owned  by  her  before  marriage,  and  that  (2)  acquired  afterward  by 
gift,  bequest,  devise,  or  descent,  with  (3)  the  rents,  issues,  and 
profits  thereof,  is  her  separate  property.  The  wife  may,  without  the 
consent  of  her  husband,  convey  her  separate  property.  All  prop- 
erty (1)  owned  by  the  husband  before  marriage,  and  that  (2)  ac- 
quired afterward  by  gift,  bequest,  devise,  or  descent,  with  (3)  the 
rents,  issues,  and  profits  thereof,  is  his  separate  property.  All  other 
property  acquired  after  marriage  by  either  husband  of  wife,  or  both, 
including  real  property  situated  in  this  state,  and  personal  property, 
wherever  situated,  acquired  while  domiciled  elsewhere,  which  would 
not  have  been  the  separate  property  of  either  if  acquired  while 
domiciled  in  this  state,  is  community  property;  but  wherever  any 
property  is  conveyed  to  a  married  woman  by  an  instrument  in  writ- 
ing, the  presumption  is  that  the  title  is  thereby  vested  in  her  as  her 
separate  property.  And  in  case  the  conveyance  is  to  such  married 
woman  and  to  her  husband,  or  to  her  and  any  other  person,  the  pre- 
sumption is  that  the  married  woman  takes  the  part  conveyed  to  her, 
as  tenant  in  common,  unless  a  different  intention  is  expressed  in  the 
instrument,  and  the  presumption  in  this  section  mentioned  is  conclu- 
sive in  favor  of  a  purchaser  or  encumbrancer  in  good  faith  and  for  a 
valuable  consideration.  A  full  and  complete  inventory  of  the  sepa- 
rate personal  property  of  the  wife  may  be  made  out  and  signed  by 
her,  acknowledged  or  proved  in  the  manner  required  by  law  for  the 
acknowledgment  or  proof  of  a  grant  of  real  property  by  an  unmar- 
ried woman  and  recorded  in  the  office  of  the  recorder  of  the  county 
in  which  the  parties  reside.     The  filing  of  the  inventory  in  the  re- 


156  HUSBAND  AND  WIFE 


corder's  office  is  notice  and  prima  facie  evidence  of  the  title  of  the 
wife. 

The  property  of  the  community  is  not  liable  for  the  contracts  of 
the  wife,  made  after  marriage,  unless  secured  by  a  pledge  or  mort- 
gage of  it  executed  by  the  husband.  The  earnings  of  the  wife  are 
not  liable  for  the  debts  of  the  husband.  The  (1)  earnings  and  accu- 
mulations of  the  wife  and  (2)  of  her  minor  children  living  with  her 
or  in  her  custody,  while  she  is  living  separate  from  her  husband,  are 
the  separate  property  of  the  wife.  The  separate  property  of  the 
husband  is  not  liable  for  the  debts  of  the  wife  contracted  before 
the  marriage.  The  separate  property  of  the  wife  is  liable  for  her 
own  debts  contracted  before  or  after  her  marriage,  but  is  not  liable 
for  her  husband's  debts;  provided,  that  the  separate  property  of  the 
wife  is  liable  for  the  payment  of  debts  contracted  by  the  husband  or 
wife  for  the  necessaries  of  life  furnished  to  them  or  either  of  them 
while  they  are  living  together;  provided,  that  the  provisions  of  the 
foregoing  proviso  shall  not  apply  to  the  separate  property  of  the 
wife  held  by  her  at  the  time  of  her  marriage  or  acquired  by  her  by 
devise,  succession,  or  gift,  other  than  by  gift  from  the  husband,  after 
marriage. 

For  civil  injuries  committed  by  a  married  woman,  damages  may 
be  recovered  from  her  alone,  and  her  husband  shall  not  be  liable 
for  it,  except  in  cases  where  he  would  be  jointly  liable  with  her  if  the 
marriage  did  not  exist. 

The  husband  has  the  management  and  control  of  the  community 
personal  property,  with  like  absolute  power  of  disposition,  other  than 
testamentary,  as  he  has  of  his  separate  estate;  provided,  however, 
that  he  can  not  make  a  gift  of  such  community  property,  or  dispose 
of  the  same  without  a  valuable  consideration,  or  sell,  convey,  or 
encumber  the  furniture,  furnishings,  or  fittings  of  the  home,  or  the 
clothing  or  wearing  apparel  of  the  wife  or  minor  children  that  is  com- 
munity, without  the  written  consent  of  the  wife.  The  husband  has 
the  management  and  control  of  the  community  real  property  but  the 
wife  must  join  with  him  in  executing  any  instrument  by  which  such 
community  real  property  or  any  interest  in  it,  is  leased  for  a  longer 
period  than  one  year,  or  is  sold,  conveyed,  or  encumbered;  pro- 
vided, however,  that  the  sole  lease,  contract,  mortgage  or  deed  of 
the  husband,  holding  the  record  title  to  community  real  property,  to 
a  lessee,  purchaser  or  encumbrancer,  in  good  faith  without  knowl- 


INDORSEE  157 


edge  of  the  marriajje  relation  shall  be  presumed  to  be  valid;  but  no 
action  to  avoid  such  instrument  shall  be  commenced  after  the  expi- 
ration of  one  year  from  the  filing  for  record  of  such  instrument  in 
the  recorder's  office  in  the  county  in  which  the  land  is  situate.  No 
estate  is  allowed  the  husband  as  tenant  by  courtesy  upon  the  death 
of  his  wife,  nor  is  any  estate  in  dower  allotted  to  the  wife  upon  the 
death  of  her  husband. 

If  the  husband  neglect  to  make  adequate  provision  for  the  sup- 
port of  his  wife,  any  other  person  may,  in  good  faith,  supply  her 
with  articles  necessary  for  her  support,  and  recover  the  reasonable 
value  of  it  from  the  husband.  A  husband  abandoned  by  his  wife  is 
not  liable  for  her  support  until  she  offers  to  return,  unless  she  was 
justified,  by  his  misconduct  in  abandoning  him;  nor  is  he  liable  for 
her  support  when  she  is  living  separate  from  him,  by  agreement,  un- 
less such  support  is  stipulated  in  the  agreement.  The  wife  must  sup- 
port the  husband,  when  he  has  not  deserted  her,  out  of  her  separate 
property,  when  he  has  no  separate  property,  and  there  is  no  commu- 
nity property,  and  he  is  unable  from  infirmity,  to  support  himself. 
The  property  rights  of  husband  and  wife  are  governed  by  this  article, 
unless  there  is  a  marriage  settlement  containing  stipulations  con- 
trary to  it. 

Hydraulic   Mining:      See   Mining   Law. 

Impost:  See  Tax;  Toll.  In  its  broader  sense,  is  any  tax  or  tribute 
imposed  by  authority,  and  applies  as  well  to  a  tax  on  persons  as  to  a 
tax  on  property. 

Improvements:     See  Real  Estate,  ^19. 

Incumbrance:      See  Real  Estate. 

An  Independent  Contractor  is  one  who,  in  rendering  services, 
exercises  an  independent  employer  or  occupation,  and  represents 
his  employer  only  as  to  the  results  of  his  work,  and  not  as  to  the 
means  whereby  it  is  to  be  accomplished.  The  chief  consideration 
which  determines  one  to  be  an  independent  contractor  is  the  fact 
that  the  employer  has  no  right  of  control  as  to  the  mode  of  doing 
the  work  contracted  for.     See  Contracts. 

Indorser:  Indorsing  an  instrument,  in  its  literal  sense,  means 
writing  one's  name  on  the  back  thereof;  in  its  legal  sense  it  means 
writing  one's  name  at  some  place  on  it  with  intent  to  assume  such 
liability  as  would  be  incurred  by  a  person  who  warrants  payment 
of  the  instrument  provided  it  is  first  duly  presented  to  the  maker  at 


158  INJUNCTION 


maturity,  is  not  paid  by  him,  and  the  fact  of  nonpayment  is  duly 
notified  to  the  indorser.  See  Negotiable  Instruments,  113103,  3105, 
3111,  3112  to  3131  inclusive,  3144,  3145,  3146,  3148,  3149,  3151, 
3161,  3170,  3196,  3201,  3205,  3212,  3223,  3235,  3228,  3231,  3232, 
3233,  3239,  3265,  3265d;  Bill  of  Lading,  2129f,  2129g,   2130. 

Injunction:  An  injunction  is  a  writ  or  order  requiring  a  person 
to  refrain  from  a  particular  act.  It  may  be  granted  by  the  court  in 
which  the  action  is  brought,  or  by  a  judge  of  it;  and  when  granted 
by  a  judge,  it  may  be  enforced  as  an  order  of  the  court.  An  injunc- 
tion may  be  granted  in  the  following  cases:  1.  When  it  appears 
by  the  complaint  that  the  plaintiff  is  entitled  to  the  relief  demanded, 
and  such  relief,  or  any  part  of  it,  consists  in  restraining  the  commis- 
sion or  continuance  of  the  act  complained  of,  either  for  a  limited 
period  or  perpetually;  2.  When  it  appears  by  the  complaint  or 
affidavits  that  the  commission  or  continuance  of  some  act  during 
the  litigation  would  produce  waste,  or  great  or  irreparable  injury, 
to  a  party  to  the  action;  3.  When  it  appears,  during  the  litiga- 
tion, that  a  party  to  the  action  is  doing,  or  threatens,  or  is  about  to 
do,  or  is  procuring  or  suffering  to  be  done,  some  act  in  violation  of 
the  rights  of  another  party  to  the  action  respecting  the  subject  of 
the  action,  and  tending  to  render  the  judgment  ineffectual;  4. 
When  pecuniary  compensation  would  not  afford  adequate  relief;  5. 
Where  it  would  be  extremely  difficult  to  ascertain  the  amount  of 
compensation  which  would  afford  adequate  relief;  6.  Where  the 
restraint  is  necessary  to  prevent  a  multiplicity  of  judicial  proceed- 
ings; 7.  Where  the  obligation  arises  from  a  trust.  Also  to  at- 
tach Bill  of  Lading,  21281;  Warehouse  Receipts,  26. 

An  injunction  cannot  be  granted:  1.  To  stay  a  judicial  proceeding 
pending  at  the  commencement  of  the  action  in  which  the  injunction 
is  demanded,  unless  such  restraint  is  necessary  to  prevent  a  multi- 
plicity of  such  proceedings;  2.  To  stay  proceedings  in  a  court  of  the 
United  States;  3.  To  stay  proceedings  in  another  state  upon  a 
judgment  of  a  court  of  that  state;  4.  To  prevent  the  execution 
of  a  public  statute  by  officers  of  the  law  for  the  public  benefit;  5. 
To  prevent  the  breach  of  a  contract  other  than  a  contract  in  writing 
for  the  rendition  or  furnishing  of  personal  service  from  one  to 
another  where  the  minimum  compensation  for  such  service  is  at 
the  rate  of  not  less  than  six  thousand  dollars  per  annum,  and  where 
the  promised  service  is  of  a  special,  unique,  unusual,  extraordinary 


INN  159 


or  intellectual  character  which  gives  it  peculiar  value  the  loss  of 
which  can  not  be  reasonably  or  adequately  compensated  in  damages 
in  an  action  at  law,  the  performance  of  which  would  not  be  specifi- 
cally enforced;  6.  To  prevent  the  exercise  of  a  public  or  private 
office,  in  a  lawful  manner,  by  the  person  in  possession;  7.  To 
prevent  a  legislative  act  by  a  municipal  corporation. 

Injunctions  cannot  be  granted  by  a  Justice  of  the  Peace. 

Inland   Bill   of    Exchange:      See    Negotiable    Instruments,    ^3210, 

Inn:     See  Citizens;  Liens. 

INN  is  a  public  house  of  entertainment  for  all  who  chose  to  visit 
it.  It  is  distinguished  from  a  private  boarding  house,  because  the 
keeper  of  the  latter  is  at  liberty  to  choose  his  guests,  while  the 
innkeeper  is  obliged  to  entertain  and  furnish  all  travelers  of  good 
conduct  and  means  of  payment,  with  what  they  may  have  occasion 
for,  as  such  travelers,  while  on  their  way. 

If  an  innkeeper,  hotel  keeper,  boarding-house  or  lodging-house 
keeper,  keeps  a  fire-proof  safe,  and  gives  notice  to  a  guest,  boarder, 
or  lodger,  either  personally  or  by  putting  up  a  printed  notice  in  a 
prominent  place  in  the  office  or  the  room  occupied  by  the  guest, 
boarder,  or  lodger,  that  he  keeps  such  a  safe  and  will  not  be  liable 
for  money,  jewelry,  documents,  or  other  articles  of  unusual  value 
and  small  compass,  unless  placed  in  it,  he  is  not  liable  (except  so 
far  as  his  own  acts  shall  contribute  to  it)  for  any  loss  or  injury  to 
such  articles,  if  not  deposited  with  him  to  be  placed  in  it,  nor  in 
any  case  more  than  the  sum  of  two  hundred  and  fifty  dollars  for 
any  or  all  such  property  of  any  individual  guest,  or  boarder,  or 
lodger,  unless  he  shall  have  given  a  receipt  in  writing  therefor  to 
such  a  guest,  boarder,  or  lodger. 

Every  keeper  of  a  hotel,  or  inn,  boarding  or  lodging  house,  shall 
post  in  [a]  conspicuous  place  in  the  office  or  public  room,  and  in 
every  bedroom  of  said  hotel,  boarding-house,  inn,  or  lodging-house, 
a  printed  copy  of  this  section,  and  a  statement  of  charge  or  rate  of 
charges  by  the  day,  and  for  meals  or  items  furnished,  and  for 
lodging.  No  charges  or  sum  shall  be  collected  or  received  by  any 
such  person  for  any  service  not  actually  rendered,  or  for  any  item 
not  actually  delivered,  or  for  any  greater  or  other  sum  than  he  is 
entitled  to  by  the  general  rules  and  regulations  of  said  hotel,  inn, 
boarding  or  lodging  house.  For  any  violation  of  this  section,  or 
any  of  its  provisions,  the  offender  shall  forfeit  to  the  injured  party 


160  INSTALLMENTS 


three  times  the  amount  of  the  sum  charged  in  excess  of  what  he 
is  entitled  to. 

A  GUEST  is  a  person  who  is  entertained  at  an  inn  transiently; 
while  a  boarder  is  one  who  remains  with  some  degree  of  perma- 
nence, such  as  remaining  by  the  month  at  a  rate  less  than  that 
by  the  day. 

Any  person  who  obtains  any  food  or  accommodation  at  an  hotel, 
inn,  restaurant,  boarding  house,  lodging  house,  or  furnished  apart- 
ment house  without  paying  therefor,  with  intent  to  defraud  the 
proprietor  or  manager  thereof,  or  who  obtains  credit  at  an  hotel, 
inn,  restaurant,  boarding  house,  lodging  house,  or  furnish  apart- 
ment house  by  the  use  of  any  false  pretense,  or  who,  after  obtain- 
ing credit,  food,  or  accommodation  at  an  hotel,  inn,  restaurant, 
boarding  house,  lodging  house,  or  furnished  apartment  house  ab- 
sconds or  surreptitiously  removes  his  baggage  therefrom  without 
paying  for  his  food  or  accommodations  is  guilty  of  a  misdemeanor. 

Every  hotelkeeper,  lodging-house  keeper,  and  innkeeper,  or  keeper 
of  any  place  where  rooms  are  let  to  lodgers  in  which,  or  any  of 
which  such  places  illuminating  gas  is  used,  who  shall  turn  off,  or 
cause  to  be  turned  off  at  the  meter  the  flow  of  such  illuminating 
gas,  during  the  time  of  the  use  of  any  such  room  or  rooms,  shall 
be  guilty  of  a  misdemeanor;  provided,  that  this  act  shall  not  apply 
to  any  of  the  persons  herein  enumerated,  when  such  person  or 
persons  shall  have  connected  every  exit  orifice  upon  the  gas  fix- 
tures used  in  such  place  or  places  with  a  practical  and  safe  auto- 
matic gas  igniter. 

Insolvent:  See  Assignment  to  Creditors;  Bankruptcy;  Stoppage 
in  Transit. 

Installment  Sales:  See  Real  Estate;  Attachment. 
Installment  Contracts:  During  the  last  few  years  the  greater 
part  of  the  sale  of  real  estate  in  California  has  been  on  install- 
ments— where  the  prospective  purchaser  would  sign  an  agreement 
to  buy  on  an  easy  payment  plan,  and  the  seller  would  agree  to  con- 
vey the  title  when  these  payments  were  finally  completed.  Such 
an  agreement  in  the  form  usually  made  is  a  very  dangerous  thing 
for  a  purchaser  to  sign.  He  has  no  rights  whatsoever  in  the  prop- 
erty (except  as  will  be  discussed  later)  nor  any  equity  such  as  he 
would  have  if  he  received  a  deed  and  gave  back  a  mortgage  for 
the  unpaid  balance. 


INSTALLMENTS  161 


Upon  failure  to  pay  any  installment,  the  seller  may  at  once 
sue  for  its  recovery;  but  if  the  entire  sum  becomes  due,  he  can- 
not demand  payment  of  the  price  unless  he  first  offers  to  deliver  a 
deed. 

Where  "time  is  of  th«  essence  of  the  agreement,"  such  agree- 
ment is  broken  each  time  any  installment  is  not  paid.  This  gives 
the  seller  the  right  to  rescind  the  contract,  which  right  he  should 
assert  immediately  after  the  date  of  such  non-payment.  If  he  ac- 
cepts payments  long  after  they  become  due,  it  will  be  considered 
that  he  has  waived  his  right  to  forfeit  the  contract  and  he  cannot 
insist  upon  it  until  after  the  next  due  date.  If  the  seller  retakes 
the  property  before  a  default,  the  buyer  may  recover  back  the 
money  which  he  has  already  paid  in  it. 

A  buyer  agreed  to  purchase  three  lots  on  monthly  installments 
without  interest,  "time  being  of  the  essence,"  and  if  payments  were 
not  made  promptly  "all  formerly  made  were  to  be  forfeited  as 
liquidated  damages  without  recourse  at  the  option  of  the  seller." 
Almost  from  the  beginning  the  buyer  fell  behind  in  paying  the 
installments,  sometimes  being  a  few  days  in  arrears,  and  sometimes 
more  than  a  month.  The  seller  did  not  object  when  the  payments 
were  not  made  on  time,  but  finally,  ten  months  after  the  last 
payment  date,  cancelled  the  contract  in  writing.  The  buyer  was 
entitled  to  recover  back  all  the  money  which  he  had  paid. 

One  may  agree  to  sell  property  which  he  does  not  own,  but  yet 
be  able  when  the  time  for  performance  arrives  to  furnish  a  good 
title.  In  the  meantime  the  purchaser  would  not  be  at  liberty  to 
complain  on  the  ground  that  the  seller  did  not  at  that  time  have 
title.  If  the  seller  had  title  originally  he  might  sell  the  property 
during  the  term  of  the  contract,  or  mortgage  it,  and  yet  be  able, 
when  the  final  payment  was  made,  to  give  the  deed  as  he  had 
agreed. 

John  Jones,  who  never  had  any  title  to  a  certain  parcel  of  land, 
agreed  in  writing  to  sell  it,  and  to  deliver  a  good  title  to  the  pur- 
chaser, upon  the  payment  of  35  promissory  notes  for  $10.00  each, 
payable  monthly.  Soon  afterwards  the  buyer  offered  to  pay  the 
entire  amount  and  demanded  a  deed.  Jones  refused  to  give  the 
deed  and  the  buyer  refused  to  pay  any  more.  Jones  could  not 
be   compelled   to   make   a   deed   until   the    expiration    of   the   entire 


162  INSTALLMENTS 


35  months  and  the  buyer  was  not  entitled  to  recover  back  any  of 
the  money  he  had  paid  in. 

The  buyer  must  make  the  final  payment  before  he  can  compel 
the  deed  to  be  delivered  to  him,  unless  the  seller  had  offered  to 
give  him  the  deed  if  he  would  pay  the  entire  balance  either  be- 
fore or  at  the  time  it  came  due. 

If  the  seller  cannot  deliver  title  when  all  installments  have  been 
promptly  paid,  the  buyer  may  rescind  the  contract  or  offer  to,  or 
restore  the  possession  of  the  property;  in  which  case  he  may  re- 
cover the  purchase  money  advanced,  together  with  the  value  of  the 
improvements,  but  deducting  the  reasonable  rental  value  of  the 
premises  for  the  time  he  had  them;  he  cannot  retain  both  the 
land  and  the  purchase  money  until  a  perfect  title  is  offered,  but  he 
must  pay  the  purchase  price  and  receive  such  title  as  the  seller  is 
able  to  give.  He  may  also  (a)  bring  an  action  to  compel  the 
seller  to  convey  the  property,  or  (b)  sue  the  seller  for  damages. 
He  cannot  do  both.  In  the  first  case  he  could  recover  prospective 
damages  also;  in  the  second  case  he  could  also  recover  such 
damages  as  were  caused  by  the  breach. 

If  the  buyer  in  such  a  personal  property  contract  does  not  pay 
promptly,  the  seller  may  do  any  one  of  the  following  three  things: 
(1)  Sue  for  each  installment  as  it  becomes  due,  thus  keeping  the 
contract  alive  from  month  to  month;  if  a  future  installment  comes 
due  and  is  not  paid,  he  may  then  proceed  as  under  (2)  and  (3) 
in  this  paragraph;  or,  (2)  declare  the  unpaid  balance  immediately 
due  and  payable,  if  the  instrument  so  provides;  or,  if  it  does  not 
so  provide,  wait  until  the  entire  amount  is  due  to  be  paid,  and 
then  sue  for  the  entire  amount.  It  should  be  noted  that  this 
passes  title  at  once  to  the  buyer  and  an  attachment  should  be  at 
once  issued,  and  the  property  attached  for  its  purchase  price.  If  this 
is  not  done,  the  buyer  could  transfer  title  to  an  innocent  third 
party,  and  when  the  seller  had  obtained  judgment,  there  might  be 
no  property  to  pay  it.  No  property  is  exempt  from  execution  or 
attachment  for  its  purchase  price.  If,  after  judgment,  and  then  an 
execution  sale,  the  sum  thus  realized  is  too  little  to  pay  the  amount 
of  the  claim,  there  will  be  a  deficiency  judgment  which  will  be 
entered  against  the  judgment  debtor,  and  which  can  be  collected 
out  of  other  property  he  owns;  or,  (3)  cancel  the  contract  and 
take  the  property  back,  filing  a  claim  and  delivery  suit  if  necessary. 


INSTALLMENTS  163 


The  above  rules  apply  only  when  the  installment  agreement  is 
a  so-called  conditional  sale,  rather  than  a  lease.  Some  concerns 
are  using  what  has  been  decided  by  the  courts  to  be  a  lease,  and 
nothing  more,  but  which  has  a  clause  to  the  effect  that  when  the 
lease  has  expired  and  the  buyer  has  complied  with  all  its  terms, 
he  will  then  be  given  the  right  and  option  to  purchase  the  prop- 
erty for  an  additional  amount,  usually  a  few  dollars.  But  no  title 
passes  unless  he  exercises  this  option. 

Every  person  who  shall  fraudulently  remove,  conceal  or  dispose  of 
any  goods,  chattels  or  effects,  leased  or  let  to  him  by  any  instrument 
in  writing,  or  any  personal  property  or  effects  of  another  in  his 
possession,  under  a  contract  or  purchase  not  yet  fulfilled,  and  any 
person  in  possession  of  such  goods,  chattels,  or  effects,  knowing  them 
to  be  subject  to  such  lease  or  contract  of  purchase,  who  shall  remove, 
conceal  or  dispose  of  the  same  with  intent  to  injure  or  defraud  the 
lessor  or  owTier  thereof,  is  guilty  of  embezzlement. 

Insurance:     See  Bottomry. 

INSURANCE  is  a  contract  whereby  one  undertakes  to  indemnify 
another  against  loss,  damages,  or  liability,  arising  from  an  unknown 
or  contingent  event,  whether  past  or  future,  which  may  damnify  a 
person  having  an  insurable  interest,  or  create  a  liability  against  him. 
The  preceding  section  does  not  authorize  an  insurance  for  or  against 
the  drawing  of  any  lottery,  or  for  against  any  chance  or  ticket  in  a 
lottery  drawing  a  prize.  The  most  usual  kinds  of  insurance  are:  1. 
Marine  insurance;  2.  Fire  insurance;  3.  Life  insurance ;  4.  Health 
insurance;  and  5.  Accident  insurance.  All  kinds  of  insurance  are 
subject  to  the  provisions  of  this  article. 

The  person  who  undertakes  to  indemnify  another  by  a  contract 
of  insurance  is  called  the  insurer,  and  the  person  indemnified  is 
called  the  insured.  Any  one  capable  of  making  a  contract  may  be 
an  insurer,  subject  to  the  restrictions  imposed  by  special  statutes 
upon  foreign  corporations,  nonresidents  and  others.  Any  one  except 
a  public  enemy  may  be  insured. 

An  insurable  interest  in  property  may  consist  in  (1)  An  existing 
interest;  (2)  An  inchoate  interest  founded  on  an  existing  interest; 
or  (3)  An  expectancy,  coupled  with  an  existing  interest  in  that  out 
of  which   the   expectancy   arises.      A   carrier   or   depositary   of   any 


164  INSURANCE 


kind  has  an  insurable  interest  in  a  thinp:  held  by  him  as  such,  to 
the  extent  of  its  value.  A  mere  contingent  or  expectant  interest 
in  anything,  not  founded  on  an  actual  right  to  the  thing,  nor  upon 
any  valid  contract  for  it,  is  not  insurable.  The  measure  of  an  in- 
surable interest  in  property  is  the  extent  to  which  the  insured  might 
be  demnified  by  loss  or  injury  of  it.  The  sole  object  of  insurance  is 
the  indemnity  of  the  insured,  and  if  he  has  no  insurable  interest  the 
contract  is  void.  An  interest  insured  must  exist  when  the  insurance 
takes  effect,  and  when  the  loss  occurs,  but  need  not  exist  in  the 
meantime. 

Except  in  the  cases  specified  in  the  next  four  sections,  and  in 
the  cases  of  life,  accident,  and  health  insurance,  a  change  of  inter- 
est in  any  part  of  a  thing  insured,  unaccompanied  by  a  correspond- 
ing change  of  interest  in  the  insurance,  suspends  the  insurance  to 
an  equivalent  extent,  until  the  interest  in  the  thing  and  the  interest 
in  the  insurance  are  vested  in  the  same  person.  A  change  of  interest 
in  a  thing  insured,  after  the  occurrence  of  an  injury  which  results 
in  a  loss,  does  not  affect  the  right  of  the  insured  to  indemnity  for 
the  loss.  A  change  of  interest  in  one  or  more  of  several  distinct 
things,  separately  insured  by  one  policy,  does  not  avoid  the  insur- 
ance as  to  the  others.  A  change  of  interest,  by  will  or  succession, 
on  the  death  of  the  insured  docs  not  avoid  an  insurance;  and  his 
interest  in  the  insurance  passes  to  the  person  taking  his  interest 
in  the  thing  insured.  A  transfer  of  interest  by  one  of  several  part- 
ners, joint  owners  in  common,  who  are  jointly  insured,  to  the  others, 
does  not  void  an  insurance,  even  though  it  has  been  agreed  that 
the  insurance  shall  cease  upon  an  alienation  of  the  thing  insured. 
Every  stipulation  in  a  policy  of  insurance  for  the  payment  of  loss 
whether  the  person  insured  has  or  has  not  any  interest  in  the  prop- 
erty insured,  or  that  the  policy  shall  be  received  as  proof  of  such 
interest,  and  every  policy  executed  by  way  of  gaming  or  wagering,  is 
void. 

CONCEALMENT  is  a  neglect  to  communicate  that  which  a  party 
knows,  and  ought  to  communicate.  Whether  intentionel  or  unin- 
tentional, it  entitles  the  injured  party  to  rescind  a  contract  of  in- 
surance. Each  party  to  a  contract  of  insurance  must  communicate 
to  the  other,  in  good  faith,  all  the  facts  within  his  knowledge  which 
are  or  which  he  believes  to  be  material  to  the  contract,  and  which 


INSURANCE  165 


the  other  has  not  the  means  of  ascertaining,  and  as  to  which  he 
makes  no  warranty.  Neither  party  to  a  contract  of  insurance  is 
bound  to  communicate  information  of  the  matters  following,  except 
in  answer  to  the  inquiries  of  the  other:  1.  Those  which  the  other 
knows;  2.  Those  which,  in  the  exercise  of  ordinary  care,  the  other 
ought  to  know,  and  of  which  the  former  has  no  reason  to  suppose 
him  ignorant;  3.  Those  of  which  the  other  waives  communication; 
4.  Those  which  relate  to  a  risk  excepted  from  the  policy,  and  which 
are  not  otherwise  material. 

Materiality  is  to  be  determined  not  by  the  event,  but  solely  by 
the  probable  and  reasonable  influence  of  the  facts  upon  the  party 
to  whom  the  communication  is  due,  in  forming  his  estimate  of  the 
disadvantages  of  the  proposed  contract,  or  in  making  his  inquiries. 
Each  party  to  a  contract  of  insurance  is  bound  to  know  all  the  gen- 
eral causes  which  are  open  to  his  inquiry,  equally  with  that  of  the 
other,  and  which  may  affect  either  the  political  or  material  perils 
contemplated;  and  all  general  usages  of  trade.  The  right  to  infor- 
mation of  material  facts  may  be  waived,  either  by  the  terms  of 
insurance  or  by  neglect  to  make  inquiries  as  to  such  facts,  where 
they  are  distinctly  implied  in  other  facts  of  which  information  is 
communicated. 

Information  of  the  nature  or  amount  of  the  interest  of  one  in- 
sured need  not  be  communicated  unless  in  answer  to  an  inquiry,  ex- 
cept as  prescribed.  An  intentional  and  fraudulent  omission,  on  the 
part  of  one  insured,  to  communicate  information  of  matters  prov- 
ing or  tending  to  prove  the  falsity  of  a  warranty,  entitles  the  in- 
surer to  rescind.  Neither  party  to  a  contract  of  insvirance  is  bound 
to  communicate,  even  upon  inquiry,  information  of  his  own  judg- 
ment upon  the  matters  in  question. 

REPRESENTATION  may  be  oral  or  written,  or  made  at  the  same 
time  with  issuing  the  policy,  or  before  it.  Its  language  is  to  be 
interpreted  by  the  same  rules  as  the  language  of  contracts  in  general. 
A  representation  as  to  the  future  is  to  be  deemed  a  promise,  unless 
it  appears  that  it  was  merely  a  statement  of  belief  or  expectation.  It 
cannot  be  allowed  to  qualify  an  express  provision  in  a  contract  of  in- 
surance ;  but  it  may  qualify  an  implied  warranty,  and  may  be  altered 
or  withdrawn  before  the  insurance  is  effected,  but  not  afterward. 
The  completion  of  the  contract  of  insurance  is  the  time  to  which  a 
representation  must  be  presumed  to  refer. 


166  INSURANCE 


When  a  person  insured  has  no  personal  knowledge  of  a  fact,  he 
may  nevertheless  repeat  information  which  he  has  upon  the  subject, 
and  which  he  believes  to  be  true,  with  the  explanation  that  he  does 
so  on  the  information  of  others;  or  he  may  submit  the  information, 
in  its  whole  extent  to  the  insurer;  and  in  neither  case  is  he  respon- 
sible for  its  truth,  unless  it  proceeds  from  an  agent  of  the  insurer, 
whose  duty  it  is  to  give  the  intelligence.  A  representation  is  to 
be  deemed  false  when  the  facts  fail  to  correspond  with  its  asser- 
tions or  stipulations.  If  it  is  false  in  a  material  point,  whether 
affirmative  or  promissory,  the  injured  party  is  entitled  to  rescind 
the  contract  from  the  time  when  the  representation  becomes  false. 
The  materiality  of  a  representation  is  determined  by  the  same  rule 
as  the  materiality  of  a  concealment,  to  a  modification  of  a  contract 
of  insurance  as  to  its  original  formation.  Wherever  a  right  to 
rescind  a  contract  of  insurance  is  given  to  the  insurer  by  any  pro- 
vision of  this  chapter,  such  right  may  be  exercised  at  any  time  pre- 
vious to  the  commencement  of  an  action  on  the  contract. 

A  POLICY  is  the  written  instrument,  in  which  a  contract  of  in- 
surance is  set  forth.  It  must  specify:  1.  The  parties  between  whom 
the  contract  is  made;  2.  The  rate  of  premium;  3.  The  property  or 
life  insured;  4.  Th«  interest  of  the  insured  in  property  insured,  if 
he  is  not  the  absolute  owner  of  it;  5.  The  risks  insured  against; 
and,  6.     The  period  during  which  the  insured  is  to  continue 

When  the  name  of  the  person  intended  to  be  insured  is  specified 
in  a  policy,  it  can  be  applied  only  to  his  own  proper  interest.  When 
an  insurance  is  made  by  an  agent  or  trustee,  the  fact  that  his  prin- 
cipal or  beneficiary  is  the  person  really  insured  may  be  indicated 
by  describing  him  as  agent  or  trustee,  or  by  other  general  words  in 
the  policy.  To  render  an  insurance,  eflTected  by  one  partner  or  part 
owner,  applicable  to  the  interest  of  his  copartners,  or  of  other  part 
owners,  it  is  necessary  that  the  terms  of  the  policy  should  be  such 
as  are  applicable  to  the  joint  or  common  interest.  When  the  de- 
scription of  the  insured  in  a  policy  is  so  general  that  it  may  com- 
prehend any  person  or  any  class  of  persons,  he  only  can  claim  the 
benefit  of  the  policy  who  can  show  that  it  was  intended  to  include 
him.  A  policy  may  be  so  framed  that  it  will  inure  to  the  benefit 
of  whomsoever  may  become  the  owner  of  the  interest  insured  during 
the  continuance  of  the  risk.  The  mere  transfer  of  a  thing  insured 
does  not  transfer  the  policy,  but  suspendiB  it  until  the  same  person 


INSURANCE  167 


becomes  the  owner  of  both  the  policy  and  the  thing  insured.  A 
policy  is  either  open  or  valued.  An  open  policy  is  one  in  which 
th-e  value  of  the  thing  insured  is  not  agreed  upon,  but  is  left  to  be 
ascertained  in  case  of  loss.  A  valued  policy  is  one  v/hich  expresses 
on  its  face  an  agreement  that  the  thing  insured  shall  be  valued  at  a 
specified  sum.  A  running  policy  is  one  which  contemplates  succes- 
sive insurances,  and  which  provides  that  the  object  of  the  policy 
may  be  from  time  to  time  defined,  especially  as  to  the  subjects  of  in- 
surance, by  additional  statements  or  indorsements.  An  acknowl- 
edgment in  a  policy  of  the  receipt  of  premium  is  conclusive  evi- 
dence of  its  payment,  so  far  as  to  make  the  policy  binding,  notwith- 
standing any  stipulation  in  it  that  it  shall  not  be  binding  until  the 
premium  is  actually  paid.  An  agreement  made  before  a  loss,  not  to 
transfer  the  claim  of  a  person  insured,  after  the  loss  has  happened, 
is  void. 

WARRANTY  is  either  express  or  implied,  and  no  particular  form 
of  words  is  necessary  to  create  it.  If  made  at  or  before  the  execu- 
tion of  a  policy,  it  must  be  contained  in  the  policy  itself,  or  in  an- 
other instrument  signed  by  the  insured  and  referred  to  in  the  policy, 
as  making  a  part  of  it.  It  may  relate  to  the  past,  the  present,  or  to 
any  or  all  of  those.  A  statement  in  a  policy,  of  a  matter  relating  to 
the  person  or  thing  insured,  or  to  the  risk,  as  a  fact,  is  an  express 
warranty  of  it.  A  statement  in  a  policy,  which  imports  that  it  is 
intended  to  do  or  not  to  do  a  thing  which  materially  affects  the  risk, 
is  a  warranty  that  such  act  or  omission  shall  take  place.  When,  be- 
fore the  time  arrives  for  the  performance  of  a  warranty  relating  to 
the  future,  a  loss  insured  against  happens,  or  performance  becomes 
unlawful  at  the  place  of  the  contract,  or  impossible,  the  omission  to 
fulfill  the  warranty  does  not  avoid  the  policy.  The  violation  of  a 
material  warranty,  or  other  material  provisions  of  a  policy,  on  the 
part  of  either  party  to  it,  entitles  the  other  to  rescind.  A  policy  may 
declare  that  a  violation  of  specified  provisions  thereof  shall  avoid  it, 
otherwise  the  breach  of  an  immaterial  provision  does  not  avoid  the 
policy.  A  breach  of  warranty,  without  fraud,  merely  exonerates 
an  insurer  from  the  time  that  it  occurs,  or  where  it  is  broken  in  its 
inception  prevents  the  policy  from  attaching  to  the  risk. 

RETURN  PREMIUM:  An  insurer  is  entitled  to  payment  of  the 
premium  as  soon  as  the  thing  insured  is  exposed  to  the  peril  insured 
against.     A  person  insured  is  entitled  to  a  return  of  premium,  as 


168  INSURANCE 


follows:  1.  To  the  whole  premium,  if  no  part  of  his  interest  in 
the  thing  insured  be  exposed  to  any  of  the  perils  insured  against. 
2.  Where  the  insurance  is  made  for  a  definite  period  of  time,  and 
the  insured  surrenders  his  policy,  to  such  proportion  of  the  premium 
as  corresponds  with  the  unexpired  time,  after  deducting  from  the 
whole  premium  any  claim  for  loss  or  damage  under  the  policy  which 
has  previously  accrued.  If  a  peril  insured  against  has  existed,  and 
the  insurer  has  been  liable  for  any  period,  however  short,  the  in- 
sured is  not  entitled  to  return  of  premiums,  so  far  as  that  particular 
risk  is  concerned.  A  person  insured  is  entitled  to  a  return  of  the 
premium  when  the  contract  is  voidable,  on  account  of  the  fraud  or 
misrepresentation  of  the  insurer,  or  on  account  of  facts,  of  the 
existence  of  which  the  insured  was  ignorant  without  his  fault;  or 
when,  by  any  default  of  the  insured  other  than  actual  fraud,  the 
insurer  never  incurred  any  liability  under  the  policy. 

OVER  INSURANCE.  In  case  of  an  over-insurance  by  several 
insurers,  the  insured  is  entitled  to  a  ratable  return  of  the  premium, 
proportioned  to  the  amount  by  which  the  aggregate  sum  insured  in 
all  the  policies  exceeds  the  insurable  value  of  the  thing  at  risk. 
When  an  over-insurance  is  effected  by  simultaneous  policies,  the  in- 
surers contribute  to  the  premium  to  be  returned  in  proportion  to 
the  amount  insured  by  their  respective  policies.  When  an  over- 
insurance  is  effected  by  successive  policies,  those  only  contribute 
to  a  return  of  the  premium  who  are  exonerated  by  prior  insur- 
ances from  the  liability  assumed  by  them,  and  in  proportion  as  the 
sum  for  which  the  premium  was  paid  exceeds  the  amount  for  which, 
on  account  of  prior  insurance,  they  could  be  made  liable. 

LIABILITY  OF  INSURER.  An  insurer  is  liable  for  a  loss  of 
which  a  peril  insured  against  was  the  proximate  cause;  although  a 
peril  not  contemplated  by  the  contract  may  have  been  a  remote 
cause  of  the  loss;  but  he  is  not  liable  for  a  loss  of  which  the  peril 
insured  against  was  only  a  remote  cause.  An  insurer  is  liable  where 
the  thing  insured  is  rescued  from  a  peril  insured  against,  that  would 
otherwise  have  caused  a  loss,  in  whole  or  in  part,  or  where  a  loss  is 
caused  by  efforts  to  rescue  the  thing  insured  from  a  peril  insured 
against.  Where  a  peril  is  specially  excepted  in  a  contract  of  in- 
surance, a  loss,  which  would  not  have  occurred  but  for  such  peril, 
is  thereby  excepted;  although  the  immediate  cause  of  the  loss  was 
a  peril  which  was  not  excepted.     An  insurer  is  not  liable  for  a  loss 


INSURANCE  169 


caused  by  the  wilful  act  of  the  insured;  but  he  is  not  exonerated  by 
the  negligence  of  the  insured,  or  of  his  agents  or  others. 

In  case  of  loss  upon  an  insurance  against  fire,  an  insui'er  is  ex- 
onerated, if  notice  of  it  be  not  given  to  him  by  some  person  insured, 
or  entitled  to  the  benefit  of  the  insurance,  without  unnecessary 
delay.  No  conditions,  stipulations  or  agreements  contained  in  any 
application  for  insurance  in  any  foreign  or  domestic  casualty  or  ac- 
cident insurance  company,  or  contained  in  any  policy  issued  by  any 
such  company,  or  in  any  way  made  by  any  such  company,  limiting 
the  time  within  which  notice  of  the  accident  or  injury,  or  death, 
shall  be  given  to  such  company  to  a  period  of  less  than  twenty  days 
after  the  happening  of  the  accident,  or  injury,  or  death,  shall  be 
valid.  Said  notice  may  be  given  to  the  company  insuring,  at  any 
time  within  twenty  days  after  the  happening  of  the  accident,  or  in- 
jury, or  death  and  shall  be  valid  and  binding  on  the  company.  When 
preliminary  proof  of  loss  is  required  by  a  policy,  the  insured  is  not 
bound  to  give  such  proof  as  would  be  necessary  in  a  court  of  justice; 
but  it  is  sufficient  for  him  to  give  the  best  evidence  which  he  has  in 
his  power  at  the  time.  All  defects  in  a  notice  of  loss,  or  in  prelimi- 
nary proof  thereof,  which  the  insured  might  remedy,  and  which  the 
insurer  omits  to  specify  to  him,  without  unnecessary  delay,  as 
grounds  of  objection  are  waived.  Delay  in  the  presentation  to  an 
insurer  of  notice  or  proof  of  loss  is  waived,  if  caused  by  any  act 
of  his,  or  if  he  omits  to  make  objection  promptly  and  specifically  upon 
that  ground.  If  a  policy  requires,  by  way  of  preliminary  proof  of 
less,  the  certificate  or  testimony  of  a  person  other  than  the  insured, 
it  is  sufficient  for  the  insured  to  use  reasonable  diligence  to  procure 
it,  and  in  case  of  the  refusal  of  such  person  to  give  it,  then  to  fur- 
nish reasonable  evidence  to  the  insurer  that  such  refusal  was  not  in- 
duced by  any  just  grounds  of  disbelief  in  the  facts  necessary  to  be 
certified. 

REINSURANCE:  A  contract  of  reinsurance  is  one  by  which  an 
insurer  procures  a  third  person  to  insure  him  against  loss  or  liability 
by  reason  of  such  original  insurance.  Where  an  insurer  obtains  re- 
insurance, he  must  communicate  all  the  representations  of  the 
original  insured,  and  also  all  the  knowledge  and  information  he  pos- 
sesses, whether  previously  or  subsequently  acquired,  which  are  ma- 
terial to  the  risk.     A  reinsurance  is  presumed  to  be  a  contract  of 


170  INSURANCE 


indemnity  against  liability,  and  not  merely  aj^ainst  damage.  The 
original  insured  has  no  interest  in  a  contract  of  reinsurance. 

MARINE  INSURANCE. 

Marine  Insurance  is  an  insurance  against  risks  connected  with 
navigation,  to  which  a  ship,  cargo,  freightage,  profits,  or  other  in- 
surable interest  in  movable  property,  may  be  exposed  during  a  cer- 
tain voyage  or  a  fixed  period  of  time.  The  owner  of  a  ship  has  in 
all  cases  an  insurable  interest  in  it,  even  when  it  has  been  chartered 
by  one  who  covenants  to  pay  him  its  value  in  case  of  loss.  The  in- 
surable interest  of  the  ov,^ner  of  a  ship  hypothecated  by  bottomry  is 
only  the  excess  of  its  value  over  the  amount  secured  by  bottomry. 
Freightage,  in  the  sense  of  a  policy  of  marine  insurance,  signifies  all 
the  benefit  derived  by  the  owner,  either  from  the  chartering  of  the 
ship  or  its  employment  for  the  carriage  of  his  own  goods  or  those  of 
others.  The  owner  of  a  ship  has  an  insurable  interest  in  expected 
freightage  which  he  would  have  certainly  earned  but  for  the  inter- 
vention of  a  peril  insured  against.  The  interest  mentioned  in  the 
last  section  exists,  in  the  case  of  a  charter-party,  when  the  ship  has 
broken  ground  on  the  chartered  voyage,  and  if  a  price  is  to  be  paid 
for  the  carriage  of  goods  when  they  are  actually  on  board,  or  there  is 
some  contract  for  putting  them  on  board,  and  both  ship  and  goods 
are  ready  for  the  specified  voyage.  One  who  has  an  interest  in  the 
thing  from  which  profits  are  expected  to  proceed,  has  an  insurable 
interest  in  the  profits.  The  charterer  of  a  ship  has  an  interest  in  it, 
to  the  extent  that  he  is  liable  to  be  damnified  by  its  loss. 

A  person  insured  by  a  contract  of  marine  insurance  is  presumed 
to  have  had  knowledge,  at  the  time  of  insuring,  of  a  previous  loss, 
if  the  information  might  possibly  have  reached  him  in  the  usual  mode 
of  transmission,  and  at  the  usual  rate  of  communication.  A  con- 
cealment in  a  marine  insurance,  in  respect  to  any  of  the  following 
matters,  does  not  vitiate  the  entire  contract,  but  merely  exonerates 
the  insurer  from  a  loss  resulting  from  the  risk  concealed.  The  na- 
tional character  of  the  insured;  2.  The  liability  of  the  thing  in- 
sured to  capture  and  detention;  3.  The  liability  to  seizure  from 
breach  of  foreign  trade;  4.  The  want  of  necessary  documents;  aiul 
5.  The  use  of  false  and  simulated  papers.  If  a  representation  by  a 
person  insured  by  a  contract  of  marine  insurance,  is  intentionally 
false  in  any  respect,  whether  material  or  immaterial,  th*  insurer 
ma?  rescind  the  entire  contract.     The  eventual  falsity  of  a  repre- 


INSURANCE  171 


sentation  as  to  expectation  does  not,  in  absence  of  fraud,  avoid  a  con- 
tract of  insurance. 

WARRANTY  of  Seaworthiness.  In  every  marine  insurance  upon 
a  ship  or  freight,  or  freightage,  or  upon  anything  which  is  the  sub- 
ject of  marine  insurance,  a  warranty  is  implied  that  the  ship  is 
seaworthy.  A  ship  is  seaworthy,  when  reasonably  fit  to  perform 
the  services,  and  to  encounter  the  ordinary  perils  of  the  voyage, 
contemplated  by  the  parties  to  the  policy.  An  implied  warranty  of 
seaworthiness  is  complied  v/ith  if  the  ship  be  seaworthy  at  the  time 
of  the  commencement  of  the  risk,  except  in  the  following  cases:  1. 
When  the  insurance  is  made  for  a  specified  length  of  time,  the  im- 
plied warranty  is  not  complied  with  unless  the  ship  be  seaworthy  at 
the  commencement  of  every  voyage  she  may  undertake  during  that 
time;  and,  2.  When  the  insurance  is  upon  the  cargo,  which,  by  the 
terms  of  the  policy,  or  the  description  of  the  voyage,  or  the  estab- 
lished custom  of  the  trade,  is  to  be  transshipped  at  an  intermedi- 
ate port,  the  implied  warranty  is  not  complied  with,  unless  each 
vessel  upon  which  the  cargo  is  shipped,  or  transshipped,  be  sea- 
worthy at  the  commencement  of  its  particular  voyage.  A  warranty 
of  seaworthiness  extends  not  only  to  the  condition  of  the  structure 
of  the  ship  itself,  but  requires  that  it  be  properly  laden,  and  pro- 
vided with  a  competent  master,  a  sufficient  number  of  competent 
officers  and  seamen,  and  the  requisite  appurtenances  and  equipments, 
such  as  ballast,  cables,  and  anchors,  cordage  and  sails,  food,  water, 
fuel,  and  lights,  and  other  necessary  and  proper  stores  and  imple- 
ments for  the  voyage.  "Where  different  portions  of  the  voyage  con- 
templated by  a  policy  different  in  respect  to  the  things  requisite  to 
make  the  ship  seaworthy  therefor,  a  warranty  of  seaworthiness  is 
complied  with  reference  to  that  portion.  When  a  ship  becomes  un- 
seaworthy  during  the  voyage  to  which  an  insurance  relates,  an  un- 
reasonable delay  in  repairing  the  defect  exonerates  the  insurer  from 
liability  from  any  loss  arising  therefrom.  A  ship  which  is  seaworthy 
for  the  purpose  of  an  insurance  upon  the  ship  may,  nevertheless, 
by  reason  of  being  unfitted  to  receive  the  cargo,  be  unseaworthy  for 
the  purpose  of  insurance  upon  the  cargo.  Where  the  nationality 
or  neutrality  of  a  ship  or  cargo  is  expressly  warranted,  it  is  implied 
that  the  ship  will  carry  the  requisite  documents  to  show  such  na- 
tionality or  neutrality,  and  that  it  will  not  carry  any  documents 
which  cast  reasonable  suspicion  on  it. 


172  INSURANCE 


DEVIATION:  When  a  voyage  contemplated  by  a  policy  is  de- 
scribed by  the  places  of  beginning  and  ending,  the  voyage  insured 
is  one  which  conforms  to  the  course  of  sailing  fixed  by  mercantile 
usage  between  those  places.  If  the  course  of  sailing  is  not  fixed  by 
mercantile  usage,  the  voyage  insured  by  a  policy  is  the  way  between 
the  places  specified  which,  to  a  master  of  ordinary  skill  and  discre- 
tion, would  seem  the  most  natural,  direct  and  advantageous.  De- 
viation is  a  departure  from  the  course  of  the  voyage  insured,  men- 
tioned in  the  last  two  sections,  or  an  unreasonable  delay  in  pursu- 
ing the  voyage,  or  the  commencement  of  an  entirely  different  voy- 
age- A  deviation  is  proper:  1.  When  caused  by  circumstances  over 
which  neither  the  master  nor  the  owner  of  the  ship  has  any  control; 
2.  When  necessary  to  comply  with  a  warranty,  or  to  avoid  a  peril 
whether  insured  against  or  not;  3.  When  made  in  good  faith;  and 
upon  a  reasonable  ground  of  belief  in  its  necessity  to  avoid  a  peril; 
or,  4.  When  made  in  good  faith,  for  the  purpose  of  saving  human 
life  or  relieving  another  vessel  in  distress.  Every  deviation  not  spe- 
cified in  the  last  section  is  improper.  An  insurer  is  not  liable  for 
any  loss  happening  to  a  thing  insured  subsequently  to  an  improper 
deviation. 

LOSS:  A  loss  may  be  either  total  or  partial.  Every  loss  which 
is  not  total  is  partial.  A  total  loss  may  be  either  actual  or  construct- 
ive. An  actual  total  loss  is  caused  by:  (1)  A  total  destruction  of 
the  thing  insured;  (2)  The  loss  of  the  thing  by  sinking,  or  by  being 
broken  up;  (3)  Any  damage  to  the  thing  which  renders  it  valueless 
to  the  owner  for  the  purpose  for  which  he  held  it,  or  (4)  Any  other 
event  which  entirely  deprives  the  owner  of  the  possession,  at  the  port 
of  destination,  of  the  thing  insured.  A  constructive  total  loss  is  one 
which  gives  to  a  person  insured  a  right  to  abandon,  as  a  ship.  An 
actual  loss  may  be  presumed  from  the  continued  absence  of  a  ship 
without  being  heard  of;  and  the  length  of  time  which  is  sufficient  to 
raise    the    presumption    depends   on    the    circumstances    of   the    case. 

When  a  ship  is  prevented,  at  an  intermediate  port,  from  complet- 
ing the  voyage,  by  the  perils  insured  against,  the  master  must  make 
every  exertion  to  procure,  in  the  same  or  a  contiguous  port,  another 
.ship,  for  the  purpose  of  conveying  the  cargo  to  its  destination;  and 
the  liability  of  a  marine  insurer  on  it  continues  after  they  are  thus 
reshipped.  In  addition  to  the  liability  mentioned  in  the  last  section 
a  marine   insurer   is  bound   for  damages,   expenses   of   di^^charging, 


INSURANCE  173 


storage,  reshipment,  extra  freightage,  and  all  other  expenses  in- 
curred in  saving  cargo  reshipped  pursuant  to  the  last  section,  up  to 
the  amount  insured.  Upon  an  actual  total  loss,  a  person  insured  is 
entitled  to  payment  without  notice  of  abandonment.  Where  it  has 
been  agreed  that  an  insurance  upon  a  particular  thing,  or  a  class  of 
things,  shall  be  free  from  particular  average,  a  marine  insurer  is 
not  liable  for  any  particular  average  loss  not  depriving  the  insured 
of  the  possession,  at  the  port  of  destination,  of  the  whole  of  such 
thing,  or  class  of  things,  even  though  it  become  entirely  worthless; 
but  he  is  liable  for  his  proportion  of  all  general  average  loss  assessed 
upon  the  thing  insured.  An  insurance  is  confined  in  terms  to  an  ac- 
tual total  loss,  but  covers  any  loss  which  necessarily  results  in  de- 
priving the  insured  of  the  possession,  at  the  port  of  destination,  of 
the  entire  thing  insured. 

ABANDONMENT  is  the  act  by  which,  after  a  constructive  total 
loss,  a  person  insured  by  contract  of  marine  insurance  declares  to  th-e 
insurer  that  he  relinquishes  to  him  his  interest  in  the  thing  insured. 
A  person  insured  by  a  contract  of  marine  insurance  may  abandon 
the  thing  insured,  or  any  particular  portion  thereof  separately  val- 
ued by  the  policy,  or  otherwise  separately  insured,  and  recover  for  a 
total  loss  thereof  when  the  cause  of  the  loss  is  a  peril  insured  against: 
1.  If  more  than  half  in  value  of  it  is  actually  lost,  or  would  have 
to  be  expended  to  recover  it  from  the  peril.  2.  If  it  is  injured  to 
such  an  extent  as  to  reduce  its  value  more  than  one-half;  3.  If  the 
thing  insured,  being  a  ship,  the  contemplated  voyage  cannot  be  law- 
fully performed  without  incurring  an  expense  to  the  insured  of  more 
than  half  the  value  of  the  thing  abandoned,  or  without  incurring 
a  risk  which  a  prudent  man  would  not  take  under  the  circumstances; 
or,  4.  If  the  thing  insured,  being  cargo  or  freightage,  the  voyage 
.cannot  be  performed  nor  another  ship  procured  by  the  master, 
within  a  reasonable  time  and  with  reasonable  diligence,  to  forward 
the  cargo,  without  incurring  the  like  expenses  or  risk.  But  freight- 
age can  not  in  any  case  be  abandoned,  unless  the  ship  is  also  aban- 
doned. 

An  ABANDONMENT  must  be  neither  partial  nor  conditional.  An 
abandonment  must  be  made  within  a  reasonable  time  after  the  in- 
formation of  the  loss,  and  after  the  commencement  of  the  voyage, 
and  before  the  party  abandoning  has  information  of  its  completion. 
Where  the  information  upon  which  an  abandonment  has  been  made 


174  INSURANCE 


proves  incorrect,  or  the  thing:  insured  was  so  far  restored  when  the 
abandonment  was  made  that  there  was  then  in  fact  no  total  loss,  the 
abandonment  becomes  ineffectual.  Abandonment  is  made  by  priv- 
ing  notice  of  it  to  the  insurer,  which  may  be  done  orally,  or  in  writ- 
ing. A  notice  of  abandonment  must  be  explicit,  and  must  specify 
the  particular  cause  of  abandonment,  but  need  state  only  enough 
to  show  that  there  is  probable  cause  therefor,  and  need  not  be  ac- 
companied with  proof  of  interest  or  of  loss.  An  abandonment  can 
be  sustained  only  upon  the  cause  specified  in  the  notice  of  it,  and 
is  equivalent  to  a  transfer,  by  the  insured,  of  his  interest,  to  the 
insurer,  with  all  the  chances  of  recovery  and  indemnity.  If  a  ma- 
rine insurer  pays  for  a  loss  as  if  it  were  an  actual  total  loss,  he  is 
entitled  to  whatever  may  remain  of  the  thing  insured,  or  its  proceeds 
or  salvage,  as  if  there  had  been  a  formal  abandonment.  Upon  an 
abandonment,  acts  done  in  good  faith  by  those  who  were  agents  of 
the  insured  in  respect  to  the  thing  insured,  subsequent  to  the  loss, 
are  at  the  risk  of  the  insurer  ,and  for  his  benefit.  An  acceptance  of 
an  abandonment  is  not  necessary  to  the  rights  of  the  insured,  and 
is  not  to  be  presumed  from  the  mere  silence  of  the  insurer,  upon 
his  receiving  notice  of  abandonment.  The  acceptance  of  an  aban- 
donment, whether  express  or  implied,  is  conclusive  upon  the  parties, 
and  admits  the  loss  and  the  sufficiency  of  the  abandonment.  An 
abandonment  once  made  and  accepted  is  irrevocable,  unless  the 
ground  upon  which  it  was  made  proves  to  be  unfounded.  On  an  ac- 
cepted abandonment  of  a  ship,  freightage  earned  previous  to  the 
loss  belongs  to  the  insurer  of  it;  but  freightage  subsequently  earned 
belongs  to  the  insurer  of  the  ship.  If  an  insurer  refuses  to  accept 
a  valid  abandonment,  he  is  liable  as  upon  an  actual  total  loss,  de- 
ducting from  the  amount  any  proceeds  of  the  thing  insured  which 
may  have  come  to  the  hands  of  the  insured.  If  a  person  omits  to 
abandon  he  may  nevertheless  recover  his  actual  loss. 

A  valuation  in  a  policy  of  marine  insurance  is  conclusive  between 
the  parties  to  it  in  the  adjustment  of  either  a  partial  or  total  loss, 
if  the  insured  has  some  interest  at  risk,  and  there  is  no  fraud  on  his 
part;  except  that  when  a  thing  has  been  hypothecated  by  bottomry 
or  respondentia,  before  its  insurance,  and  without  knowledge  of 
the  person  actually  procuring  the  insurance,  he  may  show  the  real 
value.  But  a  valuation  fraudulent  in  fact  entitles  th«  insurer  to 
rescind  the  contract.     A  marine  insurer  is  liable  upon  a  partial  loss, 


INSURANCE  175 


only  for  such  proportion  of  the  amount  insured  by  him  as  the  loss 
bears  to  the  value  of  the  whole  interest  of  the  insured  in  the  prop- 
erty insured.  Where  profits  are  separately  insured  in  a  contract  of 
marine  insurance,  the  insured  is  entitled  to  recover,  in  case  of  loss,  a 
proportion  of  such  profits  equivalent  to  the  proportion  which  the 
value  of  the  property  lost  bears  to  the  value  of  the  Avhole.  In  case 
of  a  valued  policy  of  marine  insurance  on  freightage  or  cargo,  if  a 
part  only  of  the  subject  is  exposed  to  risk,  the  valuation  applies  only 
in  proportion  to  such  part.  When  profits  are  valued  and  insured  by  a 
contract  of  marine  insurance,  a  loss  of  them  is  conclusively  pre- 
sumed from  a  loss  of  the  property  out  of  which  they  were  expected  to 
arise,  and  the  valuation  fixes  their  amount. 

In  estimating  a  loss  under  an  open  policy  of  marine  insurance  the 
following  rules  are  to  be  observed:  1.  The  value  of  a  ship  is  itsi 
value  at  the  beginning  of  the  risk,  including  all  articles  or  charges 
which  add  to  its  permanent  value,  or  which  are  necessary  to  pre- 
pare it  for  the  voyage  insured;  2.  The  value  of  cargo  is  its  actual 
cost  to  the  insured,  when  laden  on  board,  or  where  that  cost  can 
not  be  ascertained,  its  market  value  at  the  time  and  place  of  lading, 
adding  the  charges  incurred  in  purchasing  and  placing  it  on  board, 
but  without  reference  to  any  losses  incurred  in  raising  money  for 
its  purchase,  or  to  any  drawback  on  its  exportation,  or  to  the  fluc- 
tuations of  the  market  at  the  port  of  destination,  or  to  expenses  in- 
curred on  the  way  or  on  arrival;  3.  The  value  of  freightage  is  the 
gross  freightage,  exclusive  of  primage,  without  reference  to  the 
cost  of  earning  it;  and,  4.  The  cost  of  insurance  is  in  each  case  to 
be  added  to  the  value  thus  estimated.  If  cargo  insured  against  par- 
tial loss  arrives  at  the  port  of  destination  in  a  damaged  condition, 
the  loss  of  the  insured  is  deemed  to  be  the  same  proportion  of  the 
value  which  the  market  price  at  the  port,  of  the  thing  so  damaged, 
bears  to  the  market  price  it  would  have  brought  if  sound. 

A  marine  insurer  is  liable  for  all  the  expense  attendant  upon  a  loss 
which  forces  the  ship  into  port  to  be  repaired;  and  where  it  is  agreed 
that  the  insured  may  labor  for  the  recovery  of  the  property,  the  in- 
surer is  liable  for  the  expense  incurred  by  it,  such  expense,  in  either 
case,  being  in  addition  to  a  total  loss,  if  that  afterward  occurs. 

A  marine  insurer  is  liable  for  a  loss  falling  upon  the  insured, 
through  a  contribution  in  respect  to  the  thing  insured,  required  to 
be  made  by  him  toward  a  general  average  loss  called  for  by  a  peril 


176  INSURANCE 


insured  against.  Where  a  person  insured  by  a  contract  of  marine  in- 
surance has  a  demand  against  others  for  contribution,  he  may  claim 
the  whole  loss  from  the  insurer,  subrogating  him  to  his  own  right 
to  contribution.  But  no  such  claim  can  be  made  upon  the  insurer 
aftp''  the  separation  of  the  interests  liable  to  contribution,  nor  when 
the  insured,  having  the  right  and  opportunity  to  enforce  contribu- 
tion from  others,  has  neglected  or  v/aived  the  exercise  of  that  right. 
In  the  case  of  a  partial  loss  of  a  ship  or  its  equipments,  the  old  ma- 
terials are  to  be  applied  toward  payment  for  the  new,  and  whether 
the  ship  is  new  or  old,  a  marine  insurer  is  liable  for  only  two-thirds 
of  the  remaining  cost  of  the  repairs,  except  that  he  must  pay  for  an- 
chors and  cannon  in  full,  and  for  sheathing-metal  at  a  depreciation  of 
only  two  and  one-half  per  cent,  for  each  month  that  it  has  been  fas- 
tened to  the  ship. 

LIFE  INSURANCE  may  be  made  payable  on  the  death  of  the  per- 
son, or  on  his  surviving  a  specified  period,  or  periodically  so  long 
as  he  shall  live,  or  otherwise  contingently  on  the  continuance  or  de- 
termination of  Ifie.  Every  person  has  an  insurable  interest  in  life 
and  health:  1.  Of  himself ;  2.  Of  any  person  on  whom  he  depends 
wholly  or  in  part  for  education  or  support;  3.  Of  any  person  under 
a  legal  obligation  to  him  for  the  payment  of  money,  or  respecting 
property  or  services,  or  which  death  or  illness  might  delay  or  pre- 
vent the  performance;  and,  4.  Of  any  person  upon  whose  life  any 
estate  or  interest  vested  in  him  depends.  A  policy  of  insurance  upon 
life  or  health  may  pass  by  transfer,  will,  or  succession  to  any  person, 
whether  he  is  insurable  or  not,  and  such  person  may  recover  upon  it 
whatever  the  insured  might  have  recovered.  Notice  to  an  insurer 
of  a  transfer  or  bequest  thereof  is  not  necessary  to  preserve  the 
validity  of  policy  of  insurance  upon  life  or  health,  unless  expressly 
required  by  it.  Unless  the  interest  of  a  person  insured  is  suscepti- 
ble of  exact  measurement  in  money,  the  measure  of  indemnity  under 
a  policy  of  insurance  upon  life  or  health  is  the  sum  fixed  in  the  pol- 
icy. The  beneficiary  under  a  policy  of  life  insurance,  (providing  for 
the  payment  of  the  proceeds  thereof  in  periodical  installments),  may 
be  restrained  by  a  condition  or  stipulation  in  the  policy  from  dis- 
posing of  or  incumbering  his  interest  in  any  such  installment,  before 
the  date  when  it  shall  become  due  and  payable  by  the  insurer. 

Insurance   Agants:      See   Agency;   Insurance.      All   persons   doing 


INTEREST  177 


business  as  insurance  agents  must  be  licensed  to  do  so,  according 
to  a  lav/  enacted  in  1919. 

Inventions:  The  author  of  any  product  of  the  mind,  whether  it 
is  an  invention,  or  a  composition  in  letters  or  art,  or  a  design,  with 
or  without  delineation,  or  other  graphical  representation,  has  an 
exclusive  ownership  in  it,  and  in  the  representation  or  expression 
of  it,  which  continues  so  long  as  the  product  and  the  representation 
or  expression  of  it  made  by  him  remains  in  his  possession.  Unless 
otherwise  agreed,  a  product  of  the  mind  in  the  production  of  which 
several  persons  are  jointly  concerned,  is  owned  by  them  as  follows: 
1.  If  the  product  is  single,  in  equal  proportions.  2.  If  it  is  not 
single,  in  proportion  to  the  contribution  of  each.  The  owner  of  any 
product  of  the  mind,  or  of  any  representation  or  expression  of  it, 
may  transfer  his  property  in  it.  If  the  owner  of  a  product  of  the 
mind  intentionally  makes  it  public,  a  copy  or  reproduction  may  be 
made  public  by  any  person,  without  responsibility  to  the  owner,  so 
far  as  the  law  of  this  state  is  concerned.  If  the  owner  of  a  product 
of  the  mind  does  not  make  it  public,  any  other  person  subsequently 
and  originally  producing  the  same  thing  has  the  same  right  in  it  as 
the  previous  author,  which  is  exclusive  to  the  same  extent  against 
all  persons  except  the  former  author,  or  those  claiming  under  him. 
Letters  and  other  private  communications  in  writing  belong  to  the 
person  to  whom  they  are  addressed  and  delivered;  but  they  can- 
not be  published  against  the  will  of  the  writer,  except  by  authority 
of  law. 

I.  O.  U.:     See  Statute  of  Limitations. 

Interest:  See  Bottomry,  ^4;  Negotiable  Instruments,  TI3083, 
3098;  Actions;  Accord  and  Satisfaction. 

Interest  is  the  compensation  allowed  by  law  or  fixed  by  the  par- 
ties, for  the  use  of,  or  forbearance  or  detention  of  money  (in  cases 
where  people  refuse  or  neglect  to  pay  money  which  they  lawfully 
owe — as  overdue  business  accounts,  judgments,  protested  bills  of 
exchange,  payments  in  settlement  of  an  estate,  etc.).  Judgments 
in  this  state  carry  7%,  which  cannot  be  compounded. 

Unless  it  is  expressly  stated  in  v/riting  in  a  contract  or  other 
written  instrument  what  rate  of  interest  is  to  be  charged,  interest 
is  payable  on  all  moneys  after  they  become  due  at  the  rate  of  seven 
per  cent  per  annum,  but  different  states  have  differing  rates,  and 
the  laws  where  the  contract  was  made  will  govern  the  rate   to  be 


178  INTEREST 


paid — unless  it  is  expressly  stated  in  the  instrument  that  the  prin- 
cipal and  interest  is  to  be  paid  in  another  state.  Where  the  rate 
is  prescribed  by  law  or  contract,  without  specifyin^r  the  period  of 
time  by  which  it  is  to  be  calculated,  it  is  to  be  deemed  an  annual 
rate.  Whore  no  contract  exists,  interest  at  the  rate  of  7%  per 
annum  may  be  charpred  on  accounts  from  the  day  when  the  balance 
is  ascertained,  and  the  creditor  can  collect  up  to  12';^)  per  annum 
on  overdue  accounts  if  so  printed  on  his  billheads  or  statements. 
Where  any  contract  for  the  payment  of  money  docs  not  provide 
for  the  payment  of  interest,  legal  interest  is  payable  on  the  amount 
from  the  time  it  becomes  due  under  the  contract. 
When  a  creditor  accepts  payment  of  the  principal,  and  neglects  to 
collect  the  interest  at  the  same  time,  he  waives  his  right  to  interest, 
and  cannot  maintain  a  separate  action  for  it. 

In  any  contract  in  writing,  by  wiiich  any  debt  is  secured,  the 
parties  may  agree  that  if  the  interest  is  not  punctually  paid  when 
due,  it  shall  become  a  part  of  the  principal,  and  afterwards  bear 
the  same  rate  of  interest  as  the  principal.  Compound  interest — 
yearly,  half  yearly,  quarterly,  or  monthly — is  allov.-cd,  but  only 
when  provided  for  in  the  contract. 

The  rule  for  computing  interest  when  partial  payments  have  been 
made  is  to  apply  payment  in  first  place  to  discharge  of  interest  then 
due;  if  payment  exceeds  interest,  surplus  goes  toward  discharging 
principal,  and  subsequent  interest  is  to  be  computed  on  balance  of 
principal  remaining;  if  payment  be  less  than  interest,  surplus,  of 
interest  must  not  be  taken  to  augment  principal,  but  interest  contin- 
ues on  former  principal,  until  period  when  payments  taken  together 
exceed  interest  then  due. 

Interest  is  not  allowed  where  the  demand  ifi  based  upon  the  rea- 
sonable value,  or  where  an  accounting  is  necessary.  It  will  be 
allowed  where  the  amount  involved  is  a  definite  one — or  one  which 
can  be  readily  computed,  or  where  the  party  is  able  to  know  how 
much  he  owes;  or  for  the  use  of  money,  past  due;  or  for  the  wrong- 
ful withholding  of  such  money. 

The  legal  rate  of  interest  is  seven  per  cent,  per  annum.  For- 
merly persons  could  agree  to  pay  any  rate  they  pleased  (except 
that  personal  property  brokers  could  only  charge  two  per  cent,  per 
month,  if  they  made  a  business  of  loaning  money  on  chattel  mort- 
gages or  assignments  of  salaries).     In   1918   a  law  was  submitted 


JETTISON  179 


to  the  voters  of  the  State,  and  went  into  effect  December  18,  1918. 
It  forbids  any  person  to  charge  more  than  1  per  cent,  per  month — 
except  that  he  may  pay  for  certain  expenses  connected  with  making 
the  loan. 

The  United  States  Supreme  Court  has  recently  decided  that 
National  Banks  may  charge  a  greater  rate  of  interest  than  allowed 
by  the  laws  of  the  State  in  which  it  operates. 

Investment  means  putting  money  out  on  interest  in  some  form 
more  or  less  permanent  so  as  to  yield  an  income. 

Irrigation:      See  Easement,  in  Real  Estate,  1J13;  Water  Laws. 

Investment  Companies  Act:     See  Blue  Sky  Law. 

Islands:     See  Real  Estate,  1122. 

Itinerant  Vendors:      See  Peddlers. 

Jettison:  See  Carriers:  Ships.  A  carrier  by  water  may,  when  in 
case  of  extreme  peril  it  is  necessary  for  the  safety  of  the  ship  or 
cargo,  throw  overboard,  or  otherwise  sacrifice  any  or  all  of  the 
cargo  or  appurtenances  of  the  ship.  To  throw  property  overboard  for 
such  purpose  is  called  jettison,  and  the  loss  incurred  by  it  is  called 
a  general  average  loss.  A  jettison  must  begin  with  the  most  bulky 
and  least  valuable  articles,  so  far  as  possible.  A  jettison  can  be 
made  only  by  authority  of  the  master  of  the  ship,  except  in  case 
of  his  disability,  or  of  any  overruling  necessity,  when  it  may  be 
made  by  any  other  person.  The  loss  incurred  by  a  jettison,  when 
lawfully  made,  is  borne  in  due  proportion  by  all  that  part  of  the 
ship,  appurtenances,  freightage,  and  cargo  for  the  benefit  of  which 
the  sacrifice  is  made,  as  well  as  by  the  owner  of  the  thing  sacri- 
ficed. The  proportion  in  which  general  average  loss  is  to  be  borne 
must  be  ascertained  by  an  adjustment,  in  which  the  owner  of  each 
separate  interest  is  to  be  charged  with  such  proportion  of  the  value 
of  the  thing  lost  as  the  value  of  his  part  of  the  property  affected 
bears  to  the  value  of  the  v/hole.  But  an  adjustment  made  at  the 
end  of  the  voyage,  if  valid  there,  is  valid  everywhere.  The  owner  of 
things  stowed  on  deck,  in  case  of  their  jettison,  is  entitled  to  the 
benefit  of  a  general  average  contribution  only  in  case  it  is  usual  to 
stow  such  things  on  deck  upon  such  a  voyage.  In  estimating  values 
for  the  purpose  of  a  general  average,  the  ship  and  appurtenances 
must  be  valued  as  at  the  end  of  the  freightage  at  one-half  the 
amount  due  on  delivery,  and  the  cargo  as  at  the  time  and  place  of 


180  JUDGMENT 


its  discharge;  adding,  in  each  case,  the  amount  made  good  by  con- 
tribution. These  rules  concerning  jettison  are  equally  applicable  to 
every  other  voluntary  sacrifice  of  property  on  a  ship  (or  expense 
necessarily  incurred,  for  the  preservation  of  the  ship  and  cargo 
from  extraordinary  perils). 

Judgment:     See  Actions;  Court. 

Judgment,  Confession  of:  See  Negotiable  Instruments,  113086; 
Liens;   Actions. 

A  judgment  is  the  decision  of  the  Court  or  the  verdict  of  the 
jury.  After  it  is  rendered,  the  Clerk  of  the  Court  will  issue  an 
execution.  A  judf>-ment  in  the  Superior  Court  of  a  county  creates  a 
lien  against  all  the  real  property  of  the  defendant  in  that  county 
(see  Liens)  ;  but  a  Justice  Court  judgment  is  not  a  lien  unless  an 
abstract  of  it  is  recorded. 

All  judgments  can  be  renewed  by  filing  an  action  upon  them  at 
any  time  before  they  expire — the  five  year  period.  Judgments 
are  assignable,  and   no  consideration  need  be  shown. 

If  the  defendant  does  not  appear  within  the  time  designated  in 
the  complaint  (see  Actions),  his  default  will  be  entered  upon  appli-^ 
cation  to  th«  Clerk  of  the  Court,  and  a  judgment  will  thereafter 
be  entered  against  him  for  the  amount  asked  for  in  the  complaint, 
if  the  action  is  one  based  upon  contract  or  for  damages  merely. 
If  the  action  is  one  in  which  the  taking  of  proof  is  necessary,  the 
Judge  will  consider  the  matter  at  any  convenient  time,  without  notice 
to  the  defendant.  There  is  no  appeal  from  default  judgment  in  the 
Justice  Court.  The  only  remedy  is  to  make  an  application  to  set 
the  judgment  aside,  because  of  mistake,  surprise  or  unavoidable 
neglect  on  the  part  of  the  defendant  or  his  attorney.  In  the  Jus- 
tices' Court  this  application  must  be  made  and  must  be  heard  within 
ten  days  after  the  defendant  has  notice  or  knowledge  of  the  entry 
of  judgment.  In  the  Superior  Court  it  cannot  be  made  after  six 
months  after  the  entry  of  judgment. 

DEFICIENCY  JUDGMENT:  If  the  amount  received  from  the 
sale  of  any  property  under  execution  to  satisfy  a  judgment,  is  not 
enough  to  pay  the  entire  judgment,  with  costs  and  accrued  expenses, 
the  balance  thus  unpaid  may  be  entered  up  as  another  judgment 
against  the  judgment  debtor.  This  is  called  a  deficiency  judgment, 
and  has  the  same  effect  as  the  original  judgment,  except  as  to 
amount. 


LANDLORD  AND  TENANT  181 


Jury  Trial  is  a  right  which  can  only  be  claimed  in  actions  at  law, 
or  criminal  actions,  where  an  issue  of  fact  is  made  by  the  pleadings. 
It  can  not  be  claimed  in  equity  cases,  unless  such  issue  be  specially 
framed  for  the  jury  under  the  direction  of  the  judge.  It  can  not 
be  asserted  upon  an  issue  of  law — for  that  is  purely  a  matter  for 
the  judge  to  decide.  There  must  be  an  action  at  law — as  distin- 
guished from  a  suit  in  equity,  and  from  a  special  proceeding,  or  a 
criminal  action — and  an  issue  of  fact  joined  in  the  pleadings  in 
such  action  at  law,  before  a  jury  trial  can  be  claimed  as  a  consti- 
tutional right.    (See  Actions.) 

Landlord  and  Tenant:  See  Unlawful  Detainer;  Forcible  entry  and 
detainer;  Real  Estate;  Crops;  Hiring.  Landlord  and  Tenant  may 
be  created  in  one  of  two  ways;  either  verbally  or  in  writing.  If 
written,  the  instrument  is  called  a  lease.  If  verbal,  it  may  be 
called  either  a  lease,  a  tenancy  at  will,  or  a  tenancy  at  sufferance. 

A  tenancy  at  will  is  when  the  tenant  has  no  lease,  but  must 
expect  to  remove  from  the  premises  upon  receiving  the  customary 
statutory  notice — as  will  be  explained  later  in  this  article. 

A  tenancy  at  sufferance  is  created  when  a  person  takes  possession 
of  or  occupies  land  or  real  property,  with  the  knowledge  of  the 
owner,  but  without  his  consent.  The  owner  can  remove  such  tenant 
at  any  time. 

To  constitute  a  lease,  there  is  no  particular  form  of  words  neces- 
sary. As  long  as  it  shows  an  intention  ( 1 )  on  the  part  of  the  one  who 
leases  to  dispossess  himself  of  the  premises,  and  on  the  part  of  the 
one  leasing — to  enter  and  hold  himself  subject  to  the  other  (2) 
the  contracting  parties  (3)  a  description  of  the  premises  (4)  the 
rent  to  be  paid  and  (5)  the  term — it  is  sufficient.  Other  conditions 
are  nonessential.  Even  the  signature  of  both  parties  need  not  be 
given,  if  it  is  signed  by  the  lessor,  and  possession  taken  by  the  other. 

Verbal  leases  may  be  made  for  a  year,  but  no  longer — although 
if,  after  the  expiration  of  any  lease,  the  tenant  continues  in  posses- 
sion, and  pays  the  same  rent,  either  by  consent  of  the  landlord,  or 
without  protest  from  him — it  is  considered  that  the  lease  has  been 
thus  automatically  renewed  for  the  same  term,  at  the  same  rate. 
But  a  verbal  agreement  to  make  a  lease  for  one  year  to  begin  in 
the  future,  is  void.  If  an  agent  makes  a  lease,  he  must  have  author- 
ity to  do  so.  If  for  less  than  a  year,  it  may  be  verbal;  but  must  be 
written,  if  the  lease  made  by  him  is  for  a  longer  term.     A  minor 


182  LANDLORD  AND  TENANT 


under  the  age  of  eighteen  cannot  make  a  lease;  and  his  contract  is 
voidable,  if  made  while  over  18,  but  under  21. 

No  alien  may  lease  lands  in  this  state  for  agricultural  purposes 
for  a  term  of  more  than  three  years,  unless  he  is  eligible  to  citizen- 
ship; nor  may  any  company,  association  or  corporation  organized 
under  any  laws,  in  which  a  majority  of  the  members  are  such  aliens 
(or  in  which  a  majority  of  the  issued  capital  stock  is  owned  by  such 
aliens),  lease  such  lands  for  any  longer  term.  No  lease  of  land  for 
agricultural  or  horticultural  purposes  shall  be  valid  for  a  longer 
period  than  15  years;  no  lease  of  a  towTi  or  city  lot  is  valid  for  a 
period  of  more  than  99  years;  no  property  belonging  to  a  munici- 
pality, or  a  minor,  or  incompetent,  may  be  leased  for  more  than  15 
years. 

DEPOSIT  FOR  RENT:  Provision  is  sometimes  made  in  a  lease 
for  the  payment  in  advance  of  the  rents  of  the  last  or  later  periods 
of  the  lease,  and  such  a  provision  is  not  a  security  for  the  lessee's 
performance  of  the  agreements  in  the  lease — but  is  merely  a  pay- 
ment of  rent  in  advance.  It  may  be  retained  by  the  landlord,  even 
though  he  terminates  the  lease  for  some  fault  on  the  part  of  the 
lessee.  If  the  money  was  paid  by  the  lessee  as  a  bonus — as  an  inde- 
pendent consideration  to  induce  the  landlord  to  make  the  lease — a 
cancellation  of  the  lease  by  the  landlord  would  not  permit  the  lessee 
to  recover  his  money  back,  unless  such  cancellation  was  not  his  own 
fault.  If  the  money  was  deposited  as  security  for  the  payments  of 
the  rent  by  the  lessee,  then  upon  the  termination  of  the  lease,  he 
would  be  entitled  to  a  return  of  the  sum  deposited,  less  the  amount 
due  and  unpaid  at  the  time  of  such  termination. 

TERM :  Unless  there  is  a  local  custom  to  the  contrary,  or  unless 
there  is  a  different  agreement  to  the  contrary — real  property  is 
presumed  to  be  hired  for  one  year — except  lodgings  and  dwelling 
houses,  or  any  other  property  which  is  to  be  used  siraply  for  resi- 
dence pui-poses.  Dwelling  houses  and  lodgings  are  presumed  to  be 
taken  for  such  length  of  time  as  the  parties  adopt  for  the  payment 
of  the  rent  (unless  there  is  some  agreement  to  the  contrary;  that 
is,  if  paid  by  the  week,  the  term  is  supposed  to  be  one  week;  if 
by  the  month,  then  for  one  month,  etc.  Rent  is  payable  at  the  ex- 
piration of  the  term  of  hiring,  that  is,  at  the  end  of  the  week,  month, 
quarter,  or  year,  for  which  the  premises  are  presumed  to  be  hired — 
unless  of   course   there   is  some   agreement   to   the   contrary.      The 


LANDLORD  AND  TENANT  183 


landlord  can  demand  his  rent  in  advance,  if  the  agreement  is  to  this 
effect — but  not  otherwise. 

CHANGE  OF  TERMS:  The  landlord  may  change  the  terms  of  the 
lease,  when  the  term  is  from  month  to  month,  by  raising  the  amount, 
or  the  time  of  payment,  or  the  space  to  be  occupied.  To  do  this, 
he  must  give  notice  to  the  tenant,  not  less  than  30  days  before 
the  next  rent  day,  stating  what  the  new  terms  are  to  be,  and  if 
the  tenant  remains  in  possession  after  that  time,  he  is  presumed 
to  have  accepted  these  new  terms;  it  thus  becomes  a  new  contract 
between  the  tenant  and  the  landlord.     See  Account  Stated. 

When  the  rent  is  not  paid  when  agreed,  the  landlord  may  do 
one  of  two  things;  he  may  declare  the  lease  forfeited  and  begin 
an  action  to  oust  the  tenant;  or,  he  may  bring  an  action  to  collect 
the  rent  unpaid,  and  also  permit  the  tenant  to  remain  in  the  prem- 
ises. But  the  landlord  could  not  recover  the  rent  for  the  entire 
unexpired  term  in  the  future — even  though  the  tenant  told  him  he 
would  not  pay  any  more  rent,  nor  move  out.  If  the  tenant  aban- 
dons the  premises  without  cause,  the  landlord  may  do  one  of  three 
things;  he  may  permit  the  premises  to  remain  vacant,  and  sue  th« 
tenant  for  the  rent  v/hich  he  agreed  to  pay;  or,  he  may  try  his  best 
to  rent  the  premises,  and  if  he  can  do  so,  he  credits  the  tenant  with 
the  amount  of  the  rent  thus  obtained,  and  may  sue  him  for  the 
balance,  if  th«re  is  any;  or,  he  may  cancel  the  lease  altogether. 
But  the  landlord  cannot  do  but  one  of  the  three.  Any  tenant  is 
presumed  to  have  rented  premises  indefinitely,  unless  there  is 
some  agreement  to  the  contrary.  That  is,  if  the  time  of  paying  is 
by  the  week,  or  month,  it  is  presumed  that  the  tenant  will  continue 
in  possession  until  he  gives  notice  to  his  landlord.  This  notice  must 
be  at  least  the  same  as  the  landlord  must  give  the  tenant,  and  if 
the  tenant  moves  without  giving  such  notice,  he  is  still  liable  for 
the  rent.  In  order  to  remove  a  tenant  at  will  from  premises,  it  is 
necessary  to  sei-ve  upon  him  a  thirty  days  notice,  and  then  a  three 
day  notice  after  that,  and  then  file  an  action  in  unlawful  detainer 
(which  see).  In  case  of  a  lease,  the  rent  of  which  has  not  been 
paid,  the  three  day  notice  is  all  that  is  necessary. 

If  a  tenant  uses  the  property  for  immoral  purposes,  or  in  such  a 
manner  as  to  be  injurious  to  it,  or  to  be  a  nuisance  to  the  neighbor- 
hood— probably  no  notice  at  all  is  necessary.  To  proceed  legally,  an 
action  in  ejectment  should  be  filed,  but  it  is  more  customary  to  lite»- 


184  LANDLORD  AND  TENANT 


ally  throw  the  tenant's  possessions  out  onto  the  sidewalk.  The  tenant 
could  then  file  an  action  in  eviction  against  the  landlord,  but  the 
defense  of  waste  would  probably  be  a  good  defense. 

If  a  lessee  of  real  property  remains  in  possession  of  it  after  the 
expiration  of  the  hiring,  and  the  lessor  accepts  rent  from  him,  the 
parties  are  presumed  to  have  renewed  the  hiring  on  the  same  terms 
and  for  the  same  time,  not  exceeding  one  month  when  the  rent  is 
payable  monthly,  nor  in  any  case  one  year.  A  hiring  of  real  property, 
for  the  term  not  specified  by  the  parties,  is  deemed  to  be  renewed 
as  stated  in  the  last  section,  at  the  end  of  the  term  implied  by  law, 
unless  one  of  the  parties  gives  notice  to  the  other  of  his  intention 
to  terminate  it,  at  least  as  long  before  the  expiration  of  it  as  the 
term  of  the  hiring  itself,  not  exceeding  one  month.  When  there  is 
no  usage  or  contract  to  the  contrary,  rents  are  payable  at  the  termi- 
nation of  the  holding,  when  it  does  not  exceed  one  year.  If  the 
holding  is  by  the  day,  week,  month,  quarter,  or  year,  rent  is  paya- 
ble at  the  termination  of  the  respective  periods,  as  it  successively 
becomes  due.  The  term  of  a  lease  is  not  modified  by  checks  given 
to  the  landlord  from  time  to  time,  in  a  sum  less  than  the  monthly 
rent,  when  there  is  no  other  agreement  between  the  parties  as  to 
any  decrease  in  the  amount  of  rent. 

A  LODGER  is  one  who  occupies  a  room  or  portion  of  a  building, 
which  is  under  the  control  or  in  the  occupancy  of  another.  He  has 
no  interest  in  real  estate,  as  has  one  who  has  possession  under  a 
lease.  One  who  hires  part  of  a  room  for  a  dwelling  is  entitled  to 
the  whole  of  the  room,  notwithstanding  any  agreement  to  the  con- 
trary, and  if  a  landlord  lets  a  room  as  a  dwelling  for  more  than 
one  family,  the  person  to  whom  he  first  lets  any  part  of  it  is  entitled 
to  the  possession  of  the  whole  room  for  the  term  agreed  upon,  and 
every  tenant  in  the  building,  under  the  same  landlord,  is  relieved 
from  all  obligations  to  pay  rent  to  him  while  such  double  letting  of 
any  room  continues.     , 

REPAIRS:  When  the  premises  are  in  good  repair  at  the  time 
they  are  let,  the  tenant  in  possession,  is  bound  to  keep  them  in 
repair — unless  there  is  an  agreement  to  the  contrary.  But  the  owner 
is  liable,  under  the  following  circumstances  and  exceptions  (1)  if 
the  lease  is  one  under  which  the  landlord,  and  not  the  tenant,  is 
required  to  keep  the  premises  in  repair;  (2)  if  the  dangerous  and 
defective  condition  by  which  the  injury  was  occasioned  existed  at 


LAECENY  185 


the  time  the  premises  were  leased;  (3)  if  that  which  occasione'-l 
the  injury  was  in  :t?  nature  a  nuisance  and  was  upon  the  premises 
when  the  lease  was  executed.  The  above  is  the  rule  as  to  premises 
other  than  dwellings;  as  to  these,  a  different  rule  applies.  The  les- 
sor of  a  building  intended  for  the  occupation  of  human  beings, 
must,  in  the  absence  of  an  agreement  to  the  contrary,  put  it  into 
a  condition  fit  for  such  occupation,  and  repair  all  subsequent  dilitpi- 
dations  of  it,  which  render  it  untenantable,  except  in  those  occa- 
sioned by  his  want  of  ordinary  care.  If  within  a  reasonable  time 
after  the  notice  to  the  landlord  of  dilapidations  which  he  ought  to 
repair,  he  neglects  to  do  so,  the  tenant  miy  lepair  the  same  him- 
self (where  the  cost  of  such  repairs  do  not  require  an  expenditure 
jrreater  than  one  month's  rent  of  the  premises),  and  deduct  the  ex- 
penses of  such  repairs  from  the  rent,  or  he  may  vacate  the  prem- 
ises, in  which  case  he  shall  be  discharged  from  further  payment  of 
rent,  or  performance  of  other  conditions. 

ASSIGNMENTS:  Unless  there  is  provision  to  the  contrary  in  a 
lease,  it  may  be  assigned  by  the  lessee,  but  such  provisions  are  not 
favored  in  law.  The  usual  clause  is  to  the  effect  that  an  assign- 
ment shall  not  be  made  of  the  term  or  any  portion  of  it  without  the 
written  consent  of  the  landlord.  Thio  is  to  protect  him  so  that 
be  shall  be  satisfied  with  the  new  tenant;  subleasing  is  of  a  portion 
of  the  premises.  If  the  landlord  accepts  the  new  tenant  under  such 
assignment,  this  does  not  release  the  former  tenant  from  his  liabil- 
ity— unless  so  agreed;  and  it  is  seldom  so  agreed.  Sometimes  a 
new  tenant  takes  over  the  property  and  pays  the  rent,  without  the 
consent  in  writing  of  the  landlord;  this  binds  the  new  tenant  to  con- 
tinue to  pay  the  rent  to  the  end  of  the  term,  but  does  not  bind  the 
landlord  to  recognize  his  rights,  unless  the  landlord  knew  of  his 
tenancy  and  accepted  it. 

Larceny  is  the  felonious  stealing,  taking,  carrying,  leading  or 
driving  away  the  personal  property  of  another.  Embezzlement  is 
fraudulent  appropriation  of  property  by  a  person  to  whom  it  has 
been  intrusted. 

The  difference  between  the  crimes  is  this:  In  larceny  the  person 
taking  or  driving  away  the  property  of  another  must  have  had  the 
intent  to  steal  such  property  at  the  time  he  takes  it  or  drives  it 
away.  In  embezzlement,  there  must  be  no  intent  to  steal  at  the 
time  the  person  takes  or  drives  av/ay  the  property  of  another;  but 


186  LAWYERS 


he  must  have  come  into  possession  of  such  property  lawfully,  and 
have  formed  the  intent  to  fraudulently  convert  the  property  to  his 
own  use  afterwards.  When  a  person  intends  to  steal  from  the 
beginning,  and  does  steal,  the  crime  is  larceny.  (See  Real  Estate; 
Conversion;  Embezzlement;  Mortgages.) 

Grand  larceny  is  larceny  committed  in  the  following  cases: 

1.  When  the  propery  taken  is  of  a  value  exceeding  fifty  dollars. 

2.  When  the  property  is  taken  from  the  person  of  another. 

3.  When  the  property  taken  is  a  horse,  mare,  gelding,  cow, 
steer,  bull,  calf,  mule,  jack  jenny,  sheep,  or  lamb. 

Every  person  who  shall  convert  any  manner  of  real  estate,  of 
the  value  of  fifty  dollars  and  upwards,  into  personal  property,  by 
severing  the  same  from  the  realty  of  another,  with  felonious  in- 
tent to  and  shall  so  steal,  take,  and  carry  away  the  same,  shall  be 
deemed  guilty  of  grand  larceny,  and  upon  conviction  of  it,  shall 
be  punishable  by  imprisonment  in  the  state  prison  for  any  term 
not  less  than  one  year  nor  more  than  fourteen  years. 

Every  person  who  shall  convert  any  manner  of  real  estate,  of 
the  value  of  under  fifty  dollars,  into  personal  property,  by  sever- 
ing the  same  from  the  realty  of  another,  with  felonious  intent  to 
and  shall  so  steal,  take,  and  carry  away  the  same,  shall  be  deemed 
guilty  of  petit  larceny,  and,  upon  conviction  of  it,  shall  be  punish- 
able by  imprisonment  in  the  county  jail  for  a  period  not  more 
than  one  year,  or  by  fine  not  exceeding  one  thousand  dollars,  or 
by  both  such  fine  and  imprisonment. 

Law    Merchant:      See    Negotiable    Instruments,    ^3266d;    Bill    of 

Law  Suit:     See  Action. 

Lawyers:     See  Liens;  Costs;  Attachment. 

An  ATTORNEY  must  be  held  to  undertake  to  use  a  reasonable 
degree  of  care  and  skill,  and  to  possess  to  a  reasonable  extent  the 
knowledge  requisite  to  a  proper  performance  of  the  duties  of  his 
profession.  If  injury  results  to  the  client  as  a  proximate  conse- 
quence of  the  want  of  such  knowledge  or  skill,  or  from  the  failure 
to  exercise  such  care,  the  attorney  must  pay  damages  to  the  extent 
of  the  injury  sustained  by  his  client.  The  attorney  is  not  liable, 
however,  for  every  mistake  which  may  occur  in  practice.  If  he 
is  fully  capacitated  to  discharge  the  duties  ordinarily  incumbent 
upon  one  of  his  profession,  and  acts  with  a  proper  degree  of  atten- 
tion, and  to  the  best  of  his  skill  and  knowledge  and  with  reasonable 


LIENS 


187 


care,  he  will  not  be  responsible  for  a  mere  error  of  judgment  when 
he  consults  his  client,  and  the  latter  (after  being  informed  of  the 
legal  status  of  the  case),  approves  the  course  which  the  attorney 
proposes  to  pursue.  Attorney's  fees  must  be  paid  by  the  one  who 
employs  him,  except  in  some  few  cases  where  the  law  provides  that 
the  losing  party  must  pay  them  (and  where  they  are  agreed  to  be 
paid  by  the  loser,  as  when  so  agreed  in  a  note,  or  mortgage)  ;  such 
fees  are  given  in  Divorce,  as  Alimony,  to  the  wife;  for  defense  of 
Injunction;  in  Eminent  Domain,  even  if  abandoned;  in  action  for 
wages.  But  they  are  not  awarded  in  the  following  cases:  Labor; 
Mechanics'  Liens;  Conversion;  Insolvency;  Claim  and  Delivery.  In 
cases  of  foreclosure  of  Mortgages,  the  Court  who  tries  the  matter 
fixes  the  fee,  no  matter  what  may  have  been  the  agreement  in  the 
mortgage  itself.  (See  Negotiable  Instruments,  113083;  Bill  of 
Lading,  2128a. 

Letters,  Property  Right  in:      See  Inventions. 
Lessee:     The  one  who  leases  from  the  ovvTier  of  property. 
Lessor:     The  one  who  leases  to  the  other — as  an  owner  of  real 
estate,  or  a  tenant  leasing  to  a  subtenant.     See  Landlord  and  Tenant. 
Letter  of  Credit  is  a  written  instrument,  addressed  by  one  person 
to  another,  requesting  the  latter  to   give  credit  to  that  person  in 
whose  favor  it  is  drawn.     It  is  either  general  or  special,  and  may  be 
addressed  to  several  persons  in  succession.     When  the  request  for 
credit   is   addressed   to    specified   persons   by    name    or   description, 
the  letter  is  special;  and  all  other  letters  of  credit  are  general,  and 
several  persons  may  successively  give  credit  upon  it.      The  writer 
of  such  a  letter  is  liable  for  credit  given  upon  it  without  notice  to 
him — unless   the   terms   express   or   imply   the   necessity   for   giving 
notice.      If   the   debtor  in   the   letter   does   not   pay — the   writer   is 
liable  to  those  who  gave  credit  in   compliance  with  its  terms.      A 
general  letter  of  credit  gives  any  person  to  whom  it  may  be  shown 
the  authority  to  comply  with  its  request,  and  when  he  does  so  it  then 
becomes  the  same  as  if  it  were  addressed  to  him  by  name. 
Libel:      See  Slander. 

Lien:  See  the  various  subtitles  in  their  alphabetical  order  in  the 
book.  A  lien  is  a  charge  imposed  upon  specific  property,  by  which 
it  is  made  security  for  the  performance  of  an  act.  Liens  are  either 
general  or  special :  A  general  lien  is  one  which  the  holder  of  is  enti- 
tled to  enforce  as  a  security  for  the  performance  of  all  the  obliga- 


188  LIENS 


tions — or  of  a  particular  class  of  obligations — which  exist  in  his 
favor  against  the  owner  of  the  property.  A  special  lien  is  one 
which  the  holder  can  enforce  only  as  security  for  the  perform- 
ance of  a  particular  act  or  obligation,  and  of  such  obligations  as 
may  be  incidental  to  it.  If,  for  his  own  protection,  the  holder  of  a 
special  lien  has  to  pay  a  lien  made  before  his — he  may  enforce  pay- 
ment of  the  amount  so  paid  by  him,  as  a  part  of  the  claim  for  which 
his  own  lien  exists. 

Liens  are  created  in  one  of  two  ways;  either  by  contract  of  the 
parties  (such  as  a  mortgage  on  real  or  personal  property),  or  by 
operation  of  law  (such  as  those  when  labor  is  performed  or  material 
furnished  in  making  or  repairing  real  or  personal  property).  A 
person  who  holds  property  because  of  a  lien  upon  it,  is  not  entitled 
to  be  paid  by  the  owner  of  the  property  for  any  trouble  or  expense 
which  he  incurs  about  the  property — except  as  in  the  case  of  a 
borrower  (which  see).  No  lien  arises  by  mere  operation  of  law, 
until  the  time  at  which  the  act  secured  by  it  ought  to  be  performed. 

An  agreement  may  be  made  to  create  a  lien  upon  property  not 
yet  acquired  by  the  party  agreeing  to  give  the  lien,  or  not  yet  in 
existence  (as  of  a  house  to  be  built)  ;  in  such  case  the  lien  agreed 
for  attaches  from  the  time  when  the  party  agreeing  to  give  it  ac- 
quires an  interest  in  the  property — to  the  extent  of  such  interest.  A 
lien  may  be  created  by  contract  to  take  immediate  effect,  as  security 
for  the  performance  of  obligations  then  not  in  existence  (such  as  a 
lien  upon  an  unplanted  crop,  for  money  to  be  advanced  to  plant 
such  crop).  Even  though  there  is  a  contract  to  the  contrary,  the 
law  will  not  permit  a  person  to  transfer  title  to  property  subject  to 
such  lien,  by  the  act  of  making  it  subject  to  such  lien.  All  con- 
tracts for  the  forfeiture  of  property  subject  to  a  lien,  in  satisfaction 
of  the  obligation  secured  by  such  lien,  are  void,  as  are  also  all  con- 
tracts in  restraint  of  the  right  of  redemption  from  such  lien. 

The  creation  of  a  lien  does  not  of  itself  imply  that  any  person  is 
bound  to  perform  the  act  for  which  the  lien  is  a  security.  The  ex- 
istence of  a  lien  upon  property  does  not  of  itself  entitle  the  person 
in  whose  favor  it  exists  to  a  lien  upon  the  same  property  for  the 
performance  of  any  other  obligation — except  the  one  which  was 
originally  secured  by  the  lien.  One  who  has  a  lien  upon  property 
may  pledge  it  to  the  extent  of  his  lien.  See  Pledge.  When  liens 
are  imposed  on  property  by  public  authority  for  a  public  purpose 


LIENS  189 


(such  as  street  or  other  improvement  liens),  the  last  one  imposed 
is  paramount.  A  Lien  dependent  upon  possession  is  not  considered 
lost  if  the  debtor  obtains  possession  by  some  trickery. 

ARCHITECT'S  LIEN:  An  architect  has  a  lien  upon  the  plans 
in  his  possession  for  the  agreed  price  or  reasonable  value  of  mak- 
ing them. 

ATTACHMENT  LIEN  on  real  estate  lasts  for  three  years,  and  may 
be  renewed  for  two  years  more,  by  order  of  Court;  on  personal 
property,  there  seems  to  be  no  limit. 

An  ATTORNEY  has  no  lien  for  his  fees  upon  a  judgment  ren- 
dered in  favor  of  his  client,  but  probably  has  for  money  belonging 
to  his  client  in  his  hands,  and  certainly  has  for  papers  in  his  posses- 
sion belonging  to  his  client.     See  Attorney  at  Law;  Costs. 

AUTOMOBILE  MAN'S  LIEN:     See  Personal  Property  Lien. 

BANKER'S  LIEN:  A  banker  has  a  lien  upon  all  property  or 
money  (in  his  hands),  belonging  to  a  customer,  for  the  balance 
due  to  him  from  such  customer  in  the  course  of  business. 

A  BOTTOMRY  LIEN,  if  created  out  of  real  or  apparent  necessity, 
in  good  faith,  is  preferred  to  every  other  lien  or  claim  upon  the 
same  thing — except  a  lien  for  seamen's  wages,  and  a  subsequent 
lien  of  material  men  for  supplies  or  repairs  indispensable  to  the 
safety  of  the  ship,  and  to  a  subsequent  lien  for  salvage.  See  Sal- 
vage. Of  two  or  more  bottomry  liens  on  the  same  property,  the 
latter  in  date  has  preference,  if  created  out  of  necessity.  A  bot- 
tomry lien  is  independent  of  possession,  but  is  lost  by  failure  to 
enforce  it  within  a  reasonable  time.  See  Reasonable  Time;  Sea- 
man; Ships. 

A  CARRIER  has  a  lien  for  freightage  and  for  services  rendered 
at  request  of  shipper  or  consignee  in  and  about  the  transportation, 
care  and  preservation  of  the  property,  and  he  also  has  a  lien  for 
money  advanced  at  request  of  shipper  or  consignee  to  discharge 
a  prior  lien.     See  Bill  of  Lading,  2127,  2128J.) 

CONSTABLE'S  LIEN:     See  Sheriff's  Lien. 

CORPORATION  LIEN:  A  corporation  for  profit  has  a  lien  upon 
each  share  of  its  subscribed  capital  stock,  independent  of  the  posses- 
sion of  the  certificate  of  it,  to  secure  the  payment  of  any  valid 
assessment  which  may  be  levied  on  such  shares.  This  is  a  lien  valid 
against  all  persons — but  the  corporation  must  transfer  such  shares 


190  LIENS 


upon  its  books,  upon  demand  by  a  subsequent  purchaser  of  these 
shares.     See  Conversion. 

CROPS:  The  lien  of  a  mortgrag'e  on  a  growinjir  crop  continues  on 
the  crop  after  severance,  whether  remaining  in  its  original  state  or 
converted  into  another  product,  so  long  as  it  remains  on  the  land  of 
the  mortgagor. 

A  FACTOR  has  a  general  lien,  dependent  upon  possession,  for  all 
that  is  due  to  him  as  such,  upon  all  articles  of  commercial  value 
which  are  entrusted  to  him  by  the  same  principal. 

FENCE  LIEN:  Except  in  Colusa,  Glenn,  Placer,  Riverside,  San 
Bernardino,  San  Diego,  San  Mateo,  Shasta,  Siskiyou,  and  Trinity 
counties — and  also  in  Liberty,  Klamath  Townships  and  Hoppa  Val- 
ley Reservation  in  Humboldt  County — if  the  owner  of  a  parcel  of 
land  makes  use  of  a  fence  upon  one  side  of  his  land  so  that  such 
fence  helps  to  enclose  his  land,  and  if  such  portion  of  the  fence  had 
been  formerly  erected  by  some  one  else — the  person  who  so  uses  it 
must  pay  the  owner  of  the  fence  one-half  of  that  portion  which 
makes  the  partition  between  their  lands. 

2.  In  Amador,  Butte,  Contra  Costa,  El  Dorado,  Kings,  Nevada, 
Sacramento,  San  Luis  Obispo,  Santa  Barbara,  Solano,  Sutter,  Tu- 
lare, Ventura,  Yolo  Counties,  and  that  part  of  San  Joaquin  county 
north  and  east  of  the  San  Joaquin  river,  this  value  is  determined 
by  agreement  of  the  parties,  or  the  judgment  of  fence  viewers. 
This  amount,  with  interest  at  15  per  cent,  per  annum,  is  a  lien  upon 
the  property  enclosed.  In  all  other  counties  first  in  this  paragraph 
named,  the  value  is  the  amount  with  lawful  interest,  to  which  the 
one  who  built  the  fence  is  entitled. 

3.  In  all  the  counties  in  the  state  (except  those  first  named  in 
the  preceding  paragraph),  if  it  becomes  necessary  that  a  partition 
fence  should  be  made  between  adjoining  lands  enclosed  by  one 
fence — then  the  other  party,  when  notified,  must  erect  one-half 
such  fence  as  near  as  practicable  on  the  division  line. 

4.  After  notice  in  writing  (or  after  a  determination  of  the  view- 
ers), either  party  shall  fail  to  proceed  to  erect — or  cause  to  be 
erected  and  completed,  within  six  months'  time  afterward — one- 
half  of  such  fence — then  the  party  giving  the  notice  may  erect  the 
entire  fence,  and  collect  by  law  one-half  of  the  cost  of  it  from  the 
other  party.  This  rule  applies  only  in  the  second  set  of  counties 
described  in  paragraph  2  of  this  article.     This  demand,  with  interest 


LIENS  191 


at  15  per  cent,  per  annum  is  a  lien  claim  against  the  land  thus  par- 
titioned. 

5.  The  lien  claimant  must  file  a  lien  the  same  as  a  mechanic's 
lien  (which  see),  and  upon  doing  so,  the  lien  is  perfected  and  be- 
comes enforceable.  One  may  have  a  lien  in  this  manner,  and  also 
file  an  action  at  law  to  recover  the  amount  determined. 

FINDERS'  LIEN:  If  the  thing  found  is  such  as  commonly  the 
object  of  sale,  the  finder  may  sell  it  (when  the  owner  cannot  be 
found  with  reasonable  diligence)  ;  or,  if  the  owner  is  found  and 
refuses  to  pay  the  lawful  demands  of  the  finder — in  one  of  the  two 
following  ways:  (1)  If  the  thing  is  in  danger  of  perishing,  or  of 
losing  the  greater  part  of  its  value;  (2)  when  the  lawful  charges 
of  the  finder  amount  to  two-thirds  of  the  value.  The  sale  must  be 
conducted  as  that  of  a  pledged  article.     See  Pledges. 

FUMIGATION  LIEN  must  be  served  personally  upon  the  owner, 
if  he  is  to  be  found;  but  service  upon  the  person  occupying  the 
premises  is  sufficient,  if  the  owner  is  not  in  this  country. 

GARAGE  MAN'S  LIEN:     See  Personal  Property  Lien. 

GRAZING  LIEN:  In  Plumas,  Lassen  and  Modoc  counties  any 
person  who  shall  permit  his  live  stock  to  graze  or  herd  upon  the  lands 
of  another  without  permission  of  the  owner  first  being  obtained,  shall 
be  liable  for  ail  damages  which  such  live  stock  shall  then  do,  with 
costs  of  suit;  and  the  live  stock  may  be  seized  and  held  by  a  writ 
of  attachment  as  security  for  the  payment  of  any  judgment  recov- 
ered in  such  action;  and  the  claim  and  lien  of  any  such  judgment  or 
attachment  shall  be  superior  to  any  other  claim  or  demand  which 
arose  after  the  commencement  of  such  action. 

HOTEL,  inn,  boarding-house,  lodging-house  and  furnished  apart- 
ment house  keepers  shall  have  a  lien  upon  the  baggage  and  other 
property  belonging  to  or  legally  under  the  control  of  th'eir  guests,  or 
boarders,  or  lodgers,  which  may  be  in  such  hotel,  inn,  or  boarding  or 
lodging-house  for  the  proper  charges  due  from  such  guests,  or  board- 
ers, or  lodgers,  for  their  accommodation,  board  and  lodging  and 
room  rent,  and  such  extras  as  are  furnished  at  their  request  (and 
for  all  money  paid  for  or  advanced  to  such  guests,  or  boarders  or 
lodgers,  and  for  the  costs  of  enforcing  such  lien),  with  the  right 
to  the  possession  of  such  baggage  and  other  property  until  such 
charges  and  moneys  are  paid;  and  unless  such  charges  and  moneys 
shall  be  paid  within  sixty  days  from  the  time  when  the  same  became 


192  LIENS 


due,  said  hotel,  inn,  boarding-house  or  lodging-house  keeper  may 
sell  said  baggage  and  property  at  a  public  auction  to  the  highest 
bidder,  after  giving  notice  of  such  sale  by  publication  of  a  notice 
containing  the  name  of  the  debtor,  the  amount  due,  a  brief  descrip- 
tion of  the  property  to  be  sold,  and  the  time  and  place  of  such  sale, 
once  every  week  for  four  successive  weeks  prior  to  the  day  of  the 
sale,  in  a  newspaper  of  general  circulation  in  the  county  in  which 
said  hotel,  inn,  boarding-house  or  lodging-house  is  situated  and  also 
by  mailing,  at  least  15  days  before  such  sale,  a  copy  of  such  notice 
addressed  to  such  guest,  boarder  or  lodger  at  his  postoffice  address, 
if  known,  and  if  not  known,  such  notice  shall  be  addressed  to  such 
guest,  boarder  or  lodger  at  the  place  where  such  hotel,  inn,  boarding- 
house  or  lodging-house  is  situated;  and  after  satisfying  such  lien 
out  of  the  proceeds  of  such  sale,  together  with  either  any  reasonable 
costs  that  may  have  incurred  in  enforcing  said  lien,  the  residue  of 
said  proceeds  of  sale,  if  any,  shall  upon  demand  made  within  six 
months  after  such  sale,  be  paid  by  said  hotel,  inn,  boarding-house 
or  lodging-house  keeper  to  such  guest,  boarder  or  lodger;  and  if 
not  demanded  within  six  months  from  the  date  of  such  sale,  such 
residue  shall  be  paid  into  the  treasury  of  the  county  in  which  the 
sale  took  place;  and  if  the  same  be  not  claimed  by  the  owner  thereof, 
or  his  legal  representative,  within  one  year  thereafter,  the  same  shall 
be  paid  into  the  the  general  fund  of  said  county;  and  such  sale  shall 
be  a  perpetual  bar  to  any  action  against  said  hotel,  inn,  boarding- 
house  or  lodging-house  keeper  for  the  recovery  of  such  baggage  or 
property  or  of  the  value  thereof,  or  for  any  damages  grovi^ing  out  of 
the  failure  of  such  guest,  boarder  or  lodger  to  receive  such  baggage 
or  property;  provided,  however,  that  if  any  baggage  or  property  be- 
coming subject  to  the  lien  herein  provided  for  does  not  belong  to  the 
guest,  lodger  or  boarder  who  incurred  the  charges  or  indebtedness  se- 
cured thereby,  at  the  time  when  such  charges  or  indebtedness  was  in- 
curred, and  if  the  hotel,  inn,  boarding-house  or  lodging-house  keeper 
entitled  to  such  lien  receives  notice  of  such  fact  at  any  time  before 
the  sale  of  such  baggage  or  property  hereunder,  then,  and  in  that 
event,  such  baggage  or  property  which  is  subject  to  said  lien  and  did 
not  belong  to  said  guest,  boarder,  or  lodger  at  the  time  when  such 
charges  or  indebtedness  was  incurred  shall  not  be  subject  to  sale  in 
the  manner  hereinbefore  provided,  but  such  baggage  and  property 
may  be  sold  in  the  manner  provided  by  the  code. 


LIENS  in?, 


Whenever  any  trunk,  carpet-bag,  valise,  box,  bundle,  or  other  bag- 
gape  has  heretofore  come,  or  shall  hereafter  come  into  possession 
of  the  keeper  of  any  hotel,  inn,  boarding  or  lodging  house,  as  such, 
and  has  remained  or  shall  remain  unclaimed  for  the  period  of  six 
months,  such  a  keeper  may  proceed  to  sell  the  same  at  public  auc- 
tion, and  out  of  the  proceeds  of  such  sale  may  retain  the  charges 
for  storage,  if  any,  and  the  expenses  of  advertising  and  sale  of  it; 
but  no  such  sale  shall  be  made  until  the  expiration  of  four  weeks 
from  the  first  publication  of  notice  of  such  sale  in  a  newspaper  pub- 
lished in  or  nearest  the  city,  town,  village  or  place  in  which  said 
hotel,  inn,  boarding  or  lodging  house  is  situated.  Said  notice  shall 
be  published  once  a  week,  for  four  successive  weeks,  in  some  news- 
paper, daily  or  weekly,  of  general  circulation,  and  shall  contain  a 
description  of  each  trunk,  carpet-bag,  valise,  box,  bundle,  or  other 
baggage,  as  near  as  may  be;  the  name  of  the  owner,  if  known,  the 
name  of  such  keeper,  and  the  time  and  place  of  sale,  and  the  ex- 
penses incurred  for  advertising  shall  be  a  lien  upon  such  trunk, 
carpet-bag,  valise,  box,  bundle,  or  other  baggage,  in  a  ratable  pro- 
portion, according  to  the  value  of  such  piece  of  property,  or  thing 
or  article  sold;  and  in  case  any  balance  arising  from  such  sale  shall 
not  be  claimed  by  the  rightful  owner  within  one  week  from  the  day 
of  said  sale,  the  same  shall  be  paid  into  the  treasury  of  the  county 
in  v/hich  the  sale  took  place;  and  if  the  same  be  not  claimed  by  the 
owner  thereof,  or  his  legal  representatives,  within  one  year  thereaf- 
ter, the  same  shall  be  paid  into  the  general  fund  of  said  county. 

INHERITANCE  TAX  is  a  lien  upon  the  property  passed  or  trans- 
ferred until  paid,  provided  that  unless  such  taxes  are  sued  for  within 
five  years  after  they  are  due  and  legally  demanded,  they  cease  to 
be  a  lien  against  any  bona  fide  purchaser  of  the  pi'operty.  See  In- 
heritance Tax;  Taxes;  Real  Estate;  Lien  of  Attachments  and  Judg- 
ments. 

A  Superior  Court  JUDGMENT  becomes  a  lien — automatically 
upon  the  recordation  thereof — on  all  of  the  real  property  of  the 
judgment  debtor  not  exempt  from  execution,  owned  by  him  in  the 
county  at  the  time  or  afterward  acquired — during  a  period  of 
five  years;  but  is  not  a  lien  upon  a  judgment  obtained  for  breach 
of  a  lease,  unless  a  levy  is  made  upon  the  property.  A  judgment 
rendered  in  the  justices'  court  does  not  become  a  lien  unless  an 
abt-tract  of  it  is  first  filed  in  the  office  of  the  County  Recorder  in 


194  LIENS 


the  county  where  the  land  is  situated;  this  lien  continues  for  only 
two  years — unless  renewed — and  may  not  continue  for  longer  than 
five  years,  unless  the  judgment  is  renewed.  The  transcript  of  the 
original  docket  of  any  judgment,  the  enforcement  of  which  has  not 
been  stayed  on  appeal,  certified  by  the  clerk,  may  be  filed  with  the 
recorder  of  any  other  county,  and  from  such  filing  the  judgment 
becomes  a  lien  upon  all  the  real  property  of  the  judgment  debtor 
not  exempt  from  execution  in  such  county,  owned  by  him  at  the  time, 
or  which  he  may  afterward  acquire  before  the  lien  expires. 

A  JUDGMENT  that  a  defendant  may  pay  a  fine  with  or  without 
the  alternative  of  imprisonment  constitutes  a  lien  in  like  manner  as 
a  judgment  for  money  rendered  in  a  civil  action.  If  there  are  sev- 
eral judgments  against  the  same  person,  the  one  levied  upon  his 
property  first,  has  the  first  right. 

LAUNDRY  proprietors  have  a  lien  upon  all  property  in  their  pos- 
session, belonging  to  a  customer,  for  all  charges  due  them  from  such 
customer  for  laundry  work.     See  Personal  Property  Lien. 

The  MASTER  of  a  ship  has  a  general  lien,  independent  of  posses- 
sion, upon  the  ship  and  freightage,  for  advances  necessarily  made 
or  liabilities  necessarily  incurred  by  him  for  the  benefit  of  the  ship, 
but  has  no  lien  for  his  wages. 

MECHANICS'   LIENS: 

1183.  Mechanics,  material  men,  contractors,  sub-contractors,  ar- 
tisans, architects,  machinists,  builders,  miners,  teamsters  and  dray- 
men, and  all  persons  and  laborers  of  every  class  performing  labor 
upon,  or  bestowing  skill  or  other  necessary  services,  or  furnishing 
materials  to  be  used  or  consumed  in,  or  furnishing  appliances,  teams 
and  power  contributing  to  the  construction,  alteration,  addition  to  or 
repair,  either  in  whole  or  in  part,  of  any  building,  wharf,  bridge, 
ditch,  flume,  acqueduct,  well,  tunnel,  fence,  machinery,  railroad, 
wagon  road  or  other  structure,  shall  have  a  lien  upon  the  property 
upon  which  they  have  bestowed  labor  or  furnished  materials,  for 
the  value  of  the  use  of  such  appliances,  teams  and  power,  whether 
at  the  instance  of  the  owner,  or  of  any  other  person  acting  by  his 
authority  or  under  him,  as  contractor  or  otherwise.  And  every 
contractor,  sub-contractor,  architect,  builder  or  other  person  having 
charge  of  the  construction,  alteration,  addition  to  or  repair,  either 
in  whole  or  in  part,  of  any  building  or  other  improvement  as  afore- 
said shall  be  held  to  be  the  agent  of  the  owner  for  the  purposes  of 


LIENS  195 


this  chapter.  Any  person  who  performs  labor  in  any  mining  claim 
or  claims,  or  in  or  upon  any  real  property  worked  as  a  mine,  either 
in  the  development  thereof  or  in  workinp:  thereon  by  the  subtrac- 
tive  process,  or  furnishes  materials  to  be  used  or  consumed  therein, 
has  a  lien  upon  the  same  and  the  works  owned  and  used  by  the  owners 
for  the  millinj?  or  reducing:  the  ores  from  the  same,  for  the  value  of 
the  work  or  labor  done,  or  materials  furnished  by  each  respectively, 
whether  done  or  furnished  at  the  instance  of  the  owner  of  such 
mining  claim  or  claims  or  real  property  worked  as  a  mine,  or  his 
agent.  And  every  contractor,  sub-contractor,  superintendent  or 
other  person  having  charge  of  any  mining  work  or  labor  performed 
in  and  about  such  mining  claim  or  claims  or  real  property  v/orkcd  as 
a  mine,  either  as  lessee  or  under  a  working  bond  or  contract  there- 
on, shall  be  held  to  be  the  agent  of  the  owner  for  the  purposes  of 
this  chapter. 

The  liens  in  this  chapter  provided  for  shall  be  direct  liens  and 
shall  not  in  the  case  of  any  claimants,  other  than  the  contractor,  be 
limited,  as  to  amount,  by  any  contract  price  agreed  upon  between 
the  contractor  and  th«  owner,  except  as  hereinafter  provided;  but 
said  several  liens  shall  not  in  any  case  exceed  in  amount  the  reason- 
able value  of  the  labor  done  or  material  furnished,  or  both,  for 
which  the  lien  is  claimed,  nor  the  price  agreed  upon  for  the  same 
between  the  claimant  and  the  person  by  whom  he  was  employed. 
Nor  in  any  case  where  the  claimant  was  employed  by  a  contractor, 
or  sub-contractor,  shall  the  lien  extend  to  any  labor  or  materials 
not  embraced  within  or  covered  by  the  original  contract  between  the 
contractor  and  the  owner,  or  any  modification  thereof  made  by  or 
with  the  consent  of  such  owner,  and  of  which  such  contract,  or  modi- 
fication thereof,  the  claimant  shall  have  had  actual  notice  before  the 
performance  of  such  labor  or  the  furnishing  of  such  materials.  The 
filing  of  such  original  contract,  or  modification  thereof,  in  the  office 
of  the  county  recorder  of  the  county  where  the  property  is  situated, 
before  the  commencement  of  the  work,  shall  be  equivalent  to  the 
giving  of  such  actual  notice  by  the  owner  to  all  persons  performing 
work  or  furnishing  materials  thereunder.  In  case  said  original  con- 
tract shall,  before  the  work  is  commenced,  be  so  filed,  together  with 
a  bond  of  the  contractor  with  good  and  sufficient  sureties  in  an 
amount  not  less  than  fifty  (50)  per  cent,  of  the  contract  price 
named  in  said  contract,  Avhich  bond  shall,  in  addition  to  any  condi- 


196  LIENS 


tions  for  the  performance  of  the  contract,  be  also  conditioned  for 
the  payment  in  full  of  the  claims  of  all  persons  furnishing  labor 
upon  or  furnish  materials  to  be  used  in  such  work,  and  shall  also 
by  its  terms  be  made  to  inure  to  the  benefit  of  any  and  all  persons 
who  perform  labor  upon  or  furnish  materials  to  be  used  in  the  work 
described  in  said  contract  so  as  to  give  such  persons  a  right  of  action 
to  recover  upon  said  bond  in  any  suit  brought  to  foreclose  the  liens 
provided  for  in  this  chapter,  or  in  a  separate  suit  brought  on  said 
bond,  then  the  court  must,  where  it  would  be  equitable  so  to  do,  re- 
strict the  recovery  under  such  liens  to  an  aggregate  amount  equal  to 
the  amount  found  to  be  due  from  the  owner  to  the  contractor,  and 
render  judgment  against  the  contractor  and  his  sureties  on  said 
bond  for  any  deficiency  or  difference  there  may  remain  between  said 
amount  so  found  to  be  due  to  the  contractor  and  the  v/hole  amount 
found  to  be  due  to  claimants  for  such  labor  or  materials,  or  both;  a 
suit  may  be  filed  upon  the  bond  without  foreclosing  the  lien. 

No  change  or  alteration  of  the  work  or  modification  of  any  such 
contract  between  the  owner  and  his  contractor  shall  release  or  exon- 
erate any  surety  or  sureties  upon  any  bond  given  under  this  section. 
It  is  the  intent  and  purpose  of  this  section  to  limit  the  owner's  lia- 
bility, in  all  cases,  to  the  measure  of  the  contract  price  where  he 
shall  have  filed  or  caused  to  be  filed  in  good  faith  with  his  original 
contract  a  valid  bond  with  good  and  sufficient  sureties  in  the  amovint 
and  upon  the  conditions  as  herein  provided.  It  shall  be  lawful  for 
the  owner  to  protect  himself  against  any  failure  of  the  contractor 
to  perform  his  contract  and  make  full  payment  for  all  work  done 
and  materials  furnished  thereunder  by  exacting  such  bond  or  other 
security  as  he  may  deem  satisfactory.  Any  person,  except  the 
contractor,  who  has  furnished  labor  or  materials,  or  who  has  con- 
tracted to  do  so,  may  at  any  time  give  the  owner  notice  to  that  effect. 
Any  form  of  wording  will  do  so  long  as  it  states  substantially  the 
facts  in  the  case  as  they  exist  at  the  time  of  giving  the  notice.  It 
is  not  compulsory  upon  a  private  owner  to  withhold  any  moneys  due 
the  contractor  after  he  has  received  such  notice,  but  it  shall  be  lav/- 
ful  for  him  to  do  so;  for  as  the  object  of  the  notice  is  to  put  him  on 
his  guard,  if  he  does  pay  over  any  moneys  after  he  has  received  no- 
tice he  does  so  at  his  peril.  Public  improvements,  and  all  buildings 
used  for  fire  and  military  purposes,  are,  on  grounds  of  public  policy 
and  necessity  exempt  from  execution  and  forced  sale;  and  as  a  me- 


LIENS  19' 


chanics'  lien  involves  a  foreclosure,  a  lien  cannot  be  claimed  against 
such  property.  Provision  is  therefore  made  in  cases  of  improvements 
upon  public  property  that  whenever  notice  is  given  as  aforesaid  the 
person  or  persons  vi^ho  contracted  with  the  contractor  for  the  work 
must  withhold  sufficient  moneys  from  the  contractor  to  satisfy  such 
claim  if  proved  valid.  The  owner  also  has  the  right  to  demand  in 
writing  a  similar  notice  or  statement  of  facts  at  any  time  either  be- 
fore or  after  the  work  is  commenced.  Refusal  to  give  the  owner 
such  notice  when  demanded  forfeits  the  right  to  claim  a  lien.  The 
transfer  of  property  after  the  commencement  of  the  work  does  not 
affect  the  rights  of  the  lien  claimant. 

1184.  Any  of  the  persons  mentioned  in  the  preceding  section, 
except  the  contractor,  may  at  any  time  prior  to  the  expiration  of  the 
period  within  which  claims  of  lien  must  be  filed  for  record,  as  pre- 
scribed by  the  provisions  of  section  one  thousand  one  hundred  eighty- 
seven,  give  to  the  owner  a  notice  that  they  have  performed  labor  or 
furnished  materials,  or  both,  to  the  contractor  or  other  person  acting 
by  th«  authority  of  the  owner,  or  that  they  have  agreed  to  do  so, 
stating  in  general  terms  the  kind  of  labor  and  materials  and  the 
name  of  the  person  to  or  for  whom  the  same  was  done  or  furnished, 
or  both,  and  the  amount  in  value,  as  near  as  may  be,  of  that  already 
done  or  furnished,  or  both,  and  of  the  whole  agreed  to  be  done  or 
furnished,  or  both,  and  any  of  said  persons  who  shall  on  the  written 
demand  of  the  owner  refuse  to  give  such  notice  shall  thereby  deprive 
himself  of  the  right  to  claim  a  lien  under  this  chapter.  Such  notice 
must  be  verified  by  the  claimant,  or  by  some  person  acting  in  his 
behalf,  and  may  be  given  by  delivering  the  same  to  said  owner  per- 
sonally, or  by  leaving  it  at  his  residence  or  place  of  business  with 
some  person  in  charge,  or  by  delivering  it  to  his  architect,  if  any; 
provided,  however,  that  in  all  cases  in  which  said  work  is  being  done 
under  a  contract  with  the  state,  or  with  any  public  board,  commis- 
sion, or  officer  thereof,  or  with  any  political  subdivision  thereof, 
such  notice  must  be  filed,  within  said  time,  in  the  office  of  the  con- 
troller, auditor  or  other  public  disbursing  officer  whose  duty  it  is  to 
make  payments  under  the  provisions  of  such  contract.  No  such 
notice  shall  be  invalid  by  reason  of  any  defect  in  form,  provided  it 
is  sufficient  to  inform  the  owner  of  the  substantial  matters  herein 
provided  for.  Upon  such  notice  being  given  it  shall  be  lawful  for 
the  ov/ner  to  withhold,  and  in  the  case  of  property  which,  for  rea- 


198  LIENS 


sons  of  public  policy  or  otherwise,  is  not  subject  to  liens  in  this  chap- 
ter provided  for,  the  owner  or  person  who  contracted  with  the  con- 
tractor, shall  withhold  from  his  contractor  sufficient  money  due  or 
that  may  become  due  to  such  contractor  to  answer  such  claim  and 
any  lien  that  may  be  filed  therefor,  including  the  reasonable  cost  of 
any  litigation  thereunder. 

1184a,  1919.  No  action  to  enforce  the  payment  of  any  such  claim 
shall  be  commenced  against  the  owner,  nor  against  the  state  or  any 
public  board,  commission,  or  officer  thereof,  nor  against  any  politi- 
cal subdivision  of  the  state  or  the  disbursing  officer  thereof  whose 
duty  it  is  to  make  payments  under  provisions  of  such  contract,  prior 
to  the  expiration  of  the  period  within  which  claims  of  lien  must 
be  filed  for  record,  as  prescribed  by  section  one  thousand  one 
hundred  thirty-seven  of  this  code,  nor  shall  any  such  suit  be  com- 
menced later  than  ninety  days  following  the  expiration  of  such 
period.  Any  number  of  persons  who  have  given  such  notices  may 
join  in  the  same  action  and  when  separate  actions  are  commenced 
the  court  first  acquiring  jurisdiction  may  consolidate  th«m.  Upon 
the  demand  of  the  owner  the  court  shall  require  all  claimants  to  the 
moneys  withheld  by  the  owner  in  response  to  such  notices  to  be 
interpleaded  in  said  action,  to  the  end  that  the  respective  rights  of 
all  parties  may  be  adjudicated  and  settled  therein. 

1184b,  1919.  In  the  event  the  moneys  so  withheld  by  the  owner 
shall  be  insufficient  to  pay  in  full  the  valid  demands  of  all  the  per- 
sons by  whom  such  notices  were  given,  the  same  shall  be  distributed 
among  such  persons  in  the  same  ratio  that  their  respective  claims 
bear  to  the  aggregate  of  such  valid  demands.  Such  pro  rata  distri- 
bution of  said  moneys  shall  be  made  among  the  persons  entitled  to 
share  therein,  without  regard  to  the  order  of  priority  in  which  their 
respective  notices  may  have  been  given  or  their  respective  actions, 
if  any,  commenced. 

1184c.  Nothing  contained  in  the  three  preceding  sections  shall 
be  construed  to  impair  in  any  manner  the  right  of  any  person  by 
whom  such  notice  has  been  given  to  recover  from  the  contractor  and 
the  surety  or  sureties  upon  his  bond  any  deficit  that  may  remain 
unpaid  after  such  pro  rata  distribution  in  an  action  commenced 
under  the  provisions  of  an  act  entitled  "An  act  to  secure  the  pay- 
ment of  the  claims  of  material  men,  mechanics,  or  laborers,  em- 
ployed by  contractors  upon  state,  municipal,  or  other  public  work," 


LIENS  199 


approved  March  27,  1887,  and  the  acts  amendatory  thereof  and 
supplemental  thereto;  provided,  that  any  person  who  shall  wilfully 
give  a  false  natice  of  his  claim  to  the  owner  or  who  shall  wilfully 
include  in  his  claim  work  or  materials  not  performed  upon  or  fur- 
nished for  the  property  described  in  such  notice  shall  forfeit  all 
right  to  participate  in  the  distribution  of  such  moneys. 

1185.  The  land  upon  which  any  building  improvements,  well  or 
structure  is  constructed,  together  with  a  convenient  space  about  the 
same,  or  so  much  as  may  be  required  for  the  convenient  use  and 
occupation  thereof,  to  be  determined  by  the  court  on  rendering 
judgment,  is  also  subject  to  the  lien,  if  at  the  commencement  of  the 
work,  or  of  the  furnishing  of  the  material  for  the  same,  the  land 
belonged  to  the  person  who  caused  said  building,  improvement,  well 
or  structure  to  be  constructed,  altered  or  repaired,  but  if  such  per- 
son owned  less  than  fee  simple  estate  in  such  land,  then  only  his 
interest  in  it  is  subject  to  such  lien,  except  as  provided  in  section 
1192.  Mortgages,  judgments,  or  other  incumbrances  which  have 
been  properly  recorded,  or  of  which  the  lien  claimant  had  actual 
notice  or  knowledge  at  the  time  of  commencing  the  work  (in  the 
case  of  the  original  contractor,  or  of  the  sub-contractor) ;  or,  at 
the  time  he  commenced  to  labor  (in  the  case  of  the  laborer) ;  or,  at 
the  time  he  commenced  to  furnish  materials  (in  the  case  of  the 
material  man),  have  precedence  over  mechanics'  liens  which  may  be 
claimed  subsequently  to  it.  Mechanics'  liens,  however,  have  prece- 
dence over  mortgages  or  other  incumbrances  which  may  attach  to 
the  property  after  the  commencement  of  the  work.  They  also  have 
precedence  over  any  unrecorded  incumbrance  unless  actual  notice 
of  its  existence  be  given  the  lien  claimant  before  he  commenced  to 
labor  or  furnish  materials. 

1186.  The  liens  provided  for  in  this  chapter  are  preferred  to  any 
lien,  mortgage,  or  other  encumbrance  which  may  have  attached 
subsequent  to  the  time  when  the  building,  improvement,  or  structure 
was  commenced,  work  done,  or  materials  were  commenced  to  be 
furnished;  also  to  any  lien,  mortgage,  or  other  encumbrance  of  which 
the  lienholder  had  no  notice,  and  which  was  unrecorded  at  the  time 
the  building,  improvement  or  structure  was  commenced,  work  done, 
or  the  materials  were  commenced  to  be  furnished. 

1187.  Every  original  contractor,  claiming  the  benefit  of  this 
chapter,  within  sixty  days  after  the  completion  of  his  contract,  and 


200  LIENS 


every  person   save   the   original   contractor   claiming  the  benefit   of 
this  chapter  at  any  time  after  he  has  ceased  to  perform  labor  or 
furnish  material,  or  both,  for  any  work  of  improvement  mentioned 
in  this  chapter,  and  until  thirty  days  after  the  completion  of  such 
work  of  improvement,  may  file  for  record  with  the  county  recorder  of 
the  county  or  city  and  county  in  which  such  property  or  some  part 
thereof  is  situated  a  claim  of  lien  containing  a  statement  of  his  de- 
mand after  deducting  all  just  credits  and  offsets,  the  name  of  the 
owner  or  reputed  owner,  if  known,  a  general  statement  of  the  kind 
of  work  done  or  materials  furnished  by  him,  or  both,  the  name  of 
the  person  by  whom  he  was  employed  or  to  whom  he  furnished  the 
materials,  and  a  description  of  the  property  sought  to  be  charged 
with  the  lien  sufficient  for  identification;  which  claim  of  lien  must  be 
verified  by  oath  of  claimant  or  some  other  person.     Any  trivial  im- 
perfection in  the  said  work,  or  in  the  completion  of  any  contract 
by  any  lien  claimant,  or  in  the  construction  of  any  building,  improve- 
ment or  structure,  or  of  the  alteration,  addition  to,  or  repair  there- 
of, shall  not  be  deemed  such  a  lack  of  completion  as  to  prevent  the 
filing  of  any  lien;  and  in  all  cases,  any  of  the  following  shall  be 
deemed  equivalent  to  a  completion  for  all  the  purposes  of  this  chap- 
ter; the  owner,  or  his  representative,  accompanied  by  cessation  from 
labor  thereon;  or  the  acceptance  by  the  owner,  or  said  agent,  of  said 
building,    improvement   or   structure;    or   cessation   from   labor   for 
thirty  days  upon  any  contract  or  upon  any  building,  improvement  or 
structure,  or  the  alteration,  addition  to,  or  repair  thereof;  the  filing 
of  the  notice  hereinafter  provided  for.     The  owner  shall  within  ten 
days  after  the  completion  of  any  contract  or  improvement  provided 
for  in  this  chapter,  or  within  ten  days  after  there  has  been  a  cessa- 
tion from  labor  thereon  for  a  period  of  thirty  days,  file  for  record 
in  the  office  of  the  county  recorder  of  the  county  where  the  property 
is  situated,  a  notice  setting  forth  the  date  when  the  same  was  com- 
pleted, or  on  which  cessation  from  labor  occurred,  together  with  his 
name  and  the  nature  of  his  title,  and  a  description  of  the  property 
sufficient  for  identification,  which  notice   shall  be  verified  by  him- 
self or  some  other  person  on  his  behalf.     The  fee  for  recording  the 
same  shall  be  one  dollar.     In  case  such  notice  be  not  so  filed,  then 
all  persons  claiming  the  benefit  of   this   chapter  shall  have   ninety 
days  after  the  completion  of  said  improvement  within  which  to  file 
their  claims  of  lien. 


LIENS  201 


1188.  In  every  case  in  which  one  claim  is  filed  against  two  or 
more  buildings,  mining  claims,  or  other  improvements  owned  by 
the  same  person,  the  person  filing  such  claim  must  at  the  same  time, 
designate  the  amount  due  to  him  on  each  of  such  buildings,  mining 
claims,  or  other  improvements;  otherwise  the  lien  of  such  claims  is 
postponed  to  other  liens.  The  lien  of  such  claimant  does  not  extend 
beyond  the  amount  designated,  as  against  other  creditors  having 
liens,  by  judgment,  mortgage,  or  otherwise,  upon  either  of  such 
buildings  or  other  improvements,  or  upon  the  land  upon  which  the 
same  are  situated. 

1190.  No  lien  provided  for  in  this  chapter  binds  any  property 
for  a  longer  period  than  ninety  days  after  the  same  has  been  filed, 
unless  proceedings  be  commenced  in  a  proper  court  within  that  time 
to  enforce  the  same;  or,  if  a  credit  be  given,  then  ninety  days  after 
the  expiration  of  such  credit;  but  no  lien  continues  in  force  for  a 
longer  time  than  one  year  from  the  time  the  work  is  completed,  by 
any  agreement  to  give  credit,  and  in  case  such  proceedings  be  not 
prosecuted  to  trial  within  two  years  after  the  commencement  the 
court  may  in  its  discretion  dismiss  the  same  for  v/ant  of  prosecution, 
and  in  all  cases  the  dismissal  of  such  action  (unless  it  be  expressly 
stated  that  the  same  is  without  prejudice),  or  a  judgment  rendered 
therein  that  no  lien  exists,  shall  be  equivalent  to  the  cancellation  and 
removal  from  the  record  of  such  lien. 

1191.  Any  person  who,  at  the  request  of  the  owner  of  any  lot 
or  tract  of  land,  grades,  fills  in,  or  otherwise  improves  the  same,  or 
the  street,  highway,  or  sidewalk  in  front  of  or  adjoining  the  same, 
or  constructs  any  areas,  or  vaults,  or  cellars,  or  rooms  under  said 
sidewalks,  or  makes  any  improvements  in  connection  therewith,  has 
a  lien  upon  said  lot  or  tract  of  land  for  his  work  done  and  materials 
furnished;  provided,  that  in  cases  where  the  improvement  made,  or 
work  done,  is  subject  to  acceptance  by  any  municipal  board  or  offi- 
cers, the  time  for  filing  claims  of  lien  shall  not  commence  to  run  un- 
til after  such  acceptance  shall  have  been  made. 

1191a.  Any  health  officer  or  governing  board  of  any  city,  town  or 
sanitary  district,  having  served  written  notice  upon  the  owner  or 
reputed  owner  of  real  estate  upon  which  there  is  a  dwelling  house, 
and  such  owner  or  reputed  owner,  after  thirty  days,  having  refused, 
neglected  or  failed  to  connect  such  dwelling  house,  together  with  all 
toilets,  sinks,  and  other  plumbing  therein,  properly  vented,  and  in 


202  LIENS 


a  sanitary  manner,  with  the  adjoining  street  sewer,  may  construct 
pame,  at  a  reasonable  cost,  and  the  person  doing  said  work  at  the 
request  of  such  health  officer  or  governing  board,  has  a  lien  upon  said 
real  estate  for  his  work  done  and  materials  furnished,  and  such  work 
done  and  materials  furnished  shall  be  held  to  have  been  done  and 
furnished  at  the  instance  of  such  owner,  or  reputed  owner,  or  per- 
son claiming  or  having  any  interest  in  it. 

1192.  Every  building  or  other  improvement,  or  work  mentioned 
in  any  of  the  preceding  sections  of  this  chapter,  constructed,  altered 
or  repaired  upon  any  land  with  the  knowledge  of  the  owner  or  of 
any  person  having  or  claiming  any  estate  therein,  and  the  work  or 
labor  done  or  materials  furnished  mentioned  in  any  of  said  sections 
with  the  knowledge  of  the  owner  or  persons  having  or  claiming  any 
estate  in  the  land,  shall  be  held  to  have  been  constructed,  performed 
or  furnished  at  the  instance  of  such  owner  or  person  having  or 
claiming  any  estate  therein,  and  such  interest  owned  or  claimed  shall 
be  subject  to  any  lien  filed  in  accordance  with  the  provisions  of  this 
chapter,  unless  such  owner  or  person  having  or  claiming  any  estate 
therein  shall,  within  ten  days  after  he  shall  have  obtained  knowledge 
of  such  construction,  alteration  or  repair  or  work  or  labor,  give  no- 
tice that  he  will  not  be  responsible  for  the  same  by  posting  a  notice 
in  writing  to  that  effect  in  some  conspicuous  place  upon  the  property, 
and  shall  also,  within  the  same  period,  file  for  record  a  verified  copy 
of  said  notice  in  the  office  of  the  county  recorder  of  the  said  county 
in  which  said  property  or  some  part  thereof  is  situated.  Said  notice 
shall  contain  a  description  of  the  property  affected  thereby  suffi- 
cient for  identification,  with  the  name,  and  the  nature  of  the  title 
or  interest  of  the  person  giving  the  same.  Said  copy  so  recorded 
may  be  verified  by  anyone  having  a  knowledge  of  the  facts,  on  be- 
half of  the  owner  or  person  for  whose  protection  the  notice  is  given. 

1193.  Any  contractor  shall  be  entitled  to  recover,  upon  a  lien 
filed  by  him,  only  such  amount  as  may  be  due  to  him  according  to 
the  terms  of  his  contract,  after  deducting  all  claims  of  other  par- 
ties for  work  done  and  materials  furnished,  as  aforesaid,  and  em- 
braced within  his  contract.  And  in  all  cases  where  a  lien  shall  be 
filed  under  this  act  for  work  done  or  for  materials  furnished  to  any 
contractor,  he  shall  defend  any  action  brought  thereon  at  his  own 
expense.  And  during  the  pendency  of  such  action  the  owner  may 
withhold  from  the  contractor  the  amount  of  judgment  against  the 


LIENS  203 


owner  or  his  property  upon  the  lien,  the  said  owner  shall  be  entitled 
to  deduct  from  any  amount  due,  or  to  become  due,  by  him  to  the 
contractor,  the  amount  of  such  judgment  and  costs.  And  if  the 
amount  of  such  judgment  and  costs  shall  exceed  the  amount  due  by 
him  to  the  contractor  in  full  he  shall  be  entitled  to  recover  back 
from  the  contractor,  or  his  bondsmen  or  sureties,  on  any  bond  given 
for  the  faithful  performance  of  his  contract,  any  amount  so  paid  by 
him,  the  said  owner,  in  excess  of  the  contract  price,  and  for  which 
the  contractor  was  originally  the  party  liable.  No  act  done  by  such 
owner  in  compliance  with  any  of  the  provisions  of  this  chapter  shall 
be  held  to  be  a  prevention  of  the  performance  of  any  such  contract 
by  the  contractor,  or  to  have  exonerated  the  sureties  on  such  or 
any  bond  given  for  faithful  performance,  or  for  the  payment  of 
liens  of  persons  performing  labor  or  furnishing  materials  or  both; 
provided  that  such  act  was  done  in  good  faith  and  without  design  to 
injure  or  harass  anyone.  When  the  property  upon  which  the  lien 
is  attached  does  not  bring  enough  at  the  foreclosure  sale  thereof 
to  satisfy  the  lien,  or  liens,  thereon,  the  deficiency  may  be  entered 
up  in  the  judgment  book,  and  it  then  becomes  a  lien,  for  a  period 
of  five  years,  upon  any  other  real  property  of  the  responsible  party, 
which  he  may  then  own  in  the  county  or  which  he  may  afterward 
acquire. 

1194.  Whenever  on  the  sale  of  the  property  subject  to  any  of 
the  liens  provided  for  in  this  chapter,  under  the  judgment  or  decree 
of  foreclosure  of  such  lien,  there  is  a  deficiency  of  proceeds,  judg- 
ment for  the  deficiency  may  be  docketed  against  the  party  personally 
liable  for  it  in  like  manner  and  with  like  effect  as  in  action  for  the 
foreclosure  of  mortgages. 

1195.  Any  number  of  persons  claiming  liens  may  join  in  the 
same  action,  and  when  separate  actions  are  commenced,  the  court 
may  consolidate  them.  The  court  must  also  allow,  as  a  part  of  the 
costs,  the  money  paid  for  verifying  and  recording  the  lien,  such 
costs  to  be  allowed  to  each  claimant  whose  lien  is  established,  wheth- 
er he  be  plaintiff  or  defendant,  or  whether  they  all  join  in  one  action 
or  separate  actions  are  consolidated.  The  person  who  sells  materials 
may  attach  them  in  a  suit  to  recover  the  amount  due  to  him  for 
the  same,  at  any  time  before  they  are  actually  used  in  the  con- 
struction for  which  they  were  purchased;  but  no  other  person  can 


!04  LIENS 


attach  them  for  any  debt  whatsoever  owed  by  the  purchaser  of  such 
materials. 

1196.  Whenever  materials  shall  have  been  furnished  for  use 
in  the  construction,  alteration,  or  repair  of  any  building  or  other 
Improvement,  such  materials  shall  not  be  subject  to  attachment, 
execution,  or  other  legal  process,  to  enforce  any  debt  due  by  the  pur- 
chaser of  such  materials,  except  a  debt  due  for  the  purchase  money 
of  it,  so  long  as  in  good  faith,  the  same  are  about  to  be  applied  to 
the  construction,  alteration,  or  repair  of  such  building,  mining  claim, 
or  other  improvement.  The  right  to  bring  a  personal  civil  suit  to 
recover  for  labor  or  materials  furnished  is  in  no  way  impaired  or 
forfeited  by  filing  a  claim  for  lien.  Such  civil  action  may  be  brought 
at  any  time  after  the  account  becomes  due,  and  any  real  or  personal 
property  of  the  debtor  may  be  attached,  as  in  other  personal  suits. 
Any  lien  which  has  already  attached,  or  the  right  to  file  such  lien, 
is  not  in  any  way  aflFected  by  bringing  a  civil  suit  regarding  the  same 
matter,  except  that  any  moneys  collected  as  a  result  of  such  suit 
.shall  be  deducted  from  the  amount  allowed  on  the  claim  of  lien. 

It  shall  not  be  competent  for  the  owner  and  contractor,  or  either 
of  them,  by  any  term  of  their  contract,  or  otherwise,  to  waive,  affect, 
or  impair  the  claims  and  liens  of  other  persons,  whether  with  or 
v/ithout  notice,  except  by  their  written  consent,  and  any  term  of 
the  contract  to  that  effect  shall  be  null  and  void.  Any  person  who 
shall  wilfully  give  a  false  notice  of  his  claim  to  the  owner  under  the 
provisions  of  section  1184  shall  forfeit  his  lien.  Any  person  who 
shall  wilfully  include  in  his  claim  filed  under  section  1187  work  or 
materials  not  performed  upon  or  furnished  for  the  property  de- 
scribed in  the  claims  shall  forfeit  his  lien.  No  mistake  or  errors  in 
the  statement  of  the  demand,  or  of  the  amount  of  credits  and  offsets 
allowed,  or  of  the  balance  asserted  to  be  due  to  claimant,  nor  in 
the  description  of  the  property  against  which  the  claim  is  filed,  shall 
invalidate  the  lien,  unless  the  court  finds  that  such  mistake  or  error 
in  the  statement  of  the  demand,  credits  and  offsets,  or  of  the  balance 
due,  was  made  with  the  intent  to  defraud,  or  the  court  shall  find 
that  an  innocent  third  party,  without  notice,  direct  or  constructive, 
has,  since  the  claim  was  filed,  become  the  bona  fide  owner  of  the 
property  liened  upon,  and  that  the  notice  of  claim  was  so  deficient 
that  it  did  not  put  the  party  upon  further  inquiry  in  any  manner. 

MINING   LIEN:      See   Mechanic's   Lien    (this   Article)    1184. 


LIENS  205 


MINING  PARTNER'S  LIEN:  Each  member  of  a  mining  partner- 
ship has  a  lien  on  the  partnership  property  independent  of  possession 
for  debts  due  the  creditors  and  for  money  advanced  for  its  use.  Any 
person  bnyin^  the  interests  of  a  mining  partner  when  the  partner- 
ship is  engaged  in  working  the  property — takes  it  subject  to  notice 
of  all  such  liens.  This  lien  is  valid  against  everybody  except  one 
who  purchases  without  notice,  in  good  faith,  and  for  a  valuable  con- 
sideration. When  one  partner  sells  his  interest  in  the  property, 
the  liened  property  becomes  primarily  liable  for  the  debt  and  the 
partner  who  sells,  becomes  secondarily  liable.  This  lien  cannot  be 
waived  by  the  person  entitled  to  it.     See  Waiver. 

PARTNERSHIP:  Each  member  of  a  partnership  may  require  its 
property  to  be  applied  to  the  discharge  of  its  debts,  and  has  a  lien 
upon  the  shares  of  the  other  partners  for  this  purpose,  and  for  the 
payment  of  the  general  balance  if  any  due  to  him. 

PERSONAL  PROPERTY  LIEN:  One  who  sells  personal  prop- 
erty has  a  special  lien  on  it — dependent  upon  possession — for  its 
price  (if  it  is  in  his  possession  M^hen  the  price  is  payable)  ;  and  may 
enforce  his  lien  in  the  same  manner  as  if  the  property  was  pledged 
to  him  for  its  price.  See  Pledges.  A  person  who  sells  movable 
property  and  transfers  the  title  to  it,  has  a  lien  on  it,  dependent  on 
possession,  for  so  much  of  the  price  as  remains  unpaid.  That  is, 
if  one  sells  property  shipped  elsewhere,  the  right  of  possession  re- 
mains in  the  shipper  until  delivery  to  the  purchaser,  and  the  pur- 
chaser has  the  right  to  recall  the  shipment,  under  certain  condi- 
tions. See  Stoppage  in  Transit.  His  lien  is  enforced  by  a  fore- 
closure action,  or  by  a  sale  by  him  after  notice  to  the  buyer  con- 
ducted as  if  the  property  were  in  pledge.     See  Pledges. 

Every  person  who,  while  lawfully  in  possession  of  an  article  of 
personal  property  renders  any  service  to  the  owner  thereof,  by  labor 
or  skill,  employed  for  the  protection,  improvement,  safe  keeping, 
or  carriage  thereof,  has  a  special  lien  thereon,  dependent  on  posses- 
sion, for  the  compensation,  if  any,  which  is  due  to  him  from  the 
owner  for  such  service;  a  person  who  makes,  alters,  or  repairs  any 
article  of  personal  property,  at  the  request  of  the  owner,  or  legal 
possessor  of  the  property,  has  a  lien  on  the  same  for  his  reasonable 
charges  for  the  balance  due  for  such  .work  done  and  materials  fur- 
nished, and  may  retain  possession  of  the  same  until  the  charges  are 
paid;  and  livery  or  boarding  or  feed  stable  proprietors,  and  persons 


20G  LIENS 


pasturing  horses  or  stock,  have  a  lien,  dependent  on  possession,  for 
their  compensation  in  caring  for,  boarding,  feeding,  or  pasturing 
such  horses  or  stock;  and  laundry  proprietors  and  persons  conduct- 
ing a  laundry  business,  have  a  general  lien,  dependent  on  possession, 
upon  all  personal  property  in  their  hands  belonging  to  a  customer, 
for  the  balance  due  them  from  such  customer  for  laundry  work; 
and  veterinary  proprietors  and  veterinary  surgeons  shall  have  a 
lien,  dependent  on  possession,  for  their  compensation  in  caring  for, 
boarding,  feeding,  and  medical  treatment  of  animals;  and  keepers 
of  garages  for  automobiles  shall  have  a  lien,  dependent  on  possession 
for  their  compensation  in  caring  for  and  safe  keeping  (of)  such 
automobiles. 

PASTURING  LIEN:     See  Personal  Property  Lion. 

PLEDGE :  The  lien  of  a  pledge  is  dependent  upon  possession, 
and  no  pledge  is  valid  until  the  property  pledged  is  delivered  to  the 
pledgee,  or  to  a  pledge  holder.  The  increase  of  property  is  pledged 
with  the  property.  One  who  has  a  lien  upon  pledged  property  may 
pledge  it  to  the  extent  of  his  lien.  See  Pledge. 

SEAMEN  and  mate  of  a  ship  have  a  general  lien,  independent  upon 
possession,  upon  the  ship  and  its  freightage,  for  their  wages,  which 
is  superior  to  every  other  lien.     See  Bottomry;  Respondentia. 

SHERIFF'S  LIEN:  An  officer  who  levies  an  attachment,  or  exe- 
cution, upon  movable  property,  acquires  a  special  lien  (dependent 
upon  possession)  upon  such  property.  This  lien  authorizes  him  to 
hold  it  until  the  process  is  discharged  or  satisfied — or  until  a  judicial 
sale  is  held.     See  also  Salvage  Lien. 

SALVAGE:  See  also  Wrecks,  Ships,  Carriers.  Sheriffs  and  all 
persons  employed  by  them,  or  aiding  in  the  recovery  and  preser- 
vation of  wrecked  property,  are  entitled  to  a  reasonable  allowance 
as  salvage  for  their  services,  and  to  all  expenses  incurred  by  them  in 
the  performance  of  such  services,  out  of  the  property  saved;  and  the 
officer  having  the  custody  of  such  property  must  detain  it  until  the 
same  are  paid  or  tendered.  But  the  whole  salvage  claimed  must  not 
exceed  one-half  of  the  value  of  the  property  or  proceeds  on 
which  it  is  charged;  and  every  agreement,  order,  or  adjustment,  al- 
lowing a  greater  salvage  is  void,  unless  ordered  and  allowed  by 
the  county  judge. 

STALLION:  Every  person  having  in  charge  any  stallion,  jack  or 
bull,  used  for  propagating  purposes,  has  a  lien  for  the  agreed  price 


LTENS  207 


of  its  service  upon  any  mare,  or  cow  and  upon  the  offspring  of  such 
service;  unless  some  wilfully  false  representation  concerning  the 
breeding  or  pedigree  of  such  stallion,  jack  or  bull  has  been  made  or 
published  by  the  owner  or  person  in  charge  of  it,  or  by  some  person, 
at  the  request  or  instigation  of  such  owner  or  person  in  charge.  Every 
person  who  claims  such  a  lien,  must  (within  ninety  days  after  the 
service  was  rendered),  file  in  the  office  of  the  county  recorder  of 
the  county  where  the  mare  or  cow  subject  is  kept,  a  verified  claim 
containinfr  (a)  a  particular  description  of  the  mare  or  cow  (b)  the 
date  (c)  and  place  of  service  (d)  th-e  name  of  the  owner  or  reputed 
owner  of  such  animal  (e)  a  description  by  name,  or  otherwise,  of 
the  stallion,  jack  or  bull  performing  the  service  (f)  the  name  of 
the  owner  or  person  in  charge  of  it  and  (g)  the  amount  of  the  lien 
claimed.  Such  claim,  so  filed  is  notice  to  subsequent  purchasers 
and  encumbrancers  of  such  mare  or  cow  and  of  the  offspring  of 
such  service  for  a  period  of  one  year  after  such  filing. 

STOCK:  Every  person  who  pastures  stock  for  another  has  a  lien 
on  such  stock  in  his  possession,  for  his  reasonable  charges  for  their 
care.     See  also  Grazing  Lien. 

STORAGE:  A  depository  for  hire  has  a  lien  for  storage  charges 
and  for  advances  and  insurance  incurred  at  the  request  of  the  bailor, 
and  for  money  necessarily  expended  in  and  about  the  care,  preser- 
vation and  keeping  of  the  property  stored,  and  he  also  has  a  lien  for 
money  advanced  at  the  request  of  the  bailor,  to  discharge  a  prior 
lien,  and  for  the  expense  of  a  sale  where  default  has  been  made  in 
satisfying  a  valid  lien. 

THRESHING  MACHINE:  Every  person  performing  work  or 
labor  in,  with,  about,  or  upon  any  barley  crusher,  threshing  machine 
or  engine,  horsepower,  wagon,  or  other  appliance  thereof,  while  en- 
gaged in  crushing  or  threshing,  has  a  lien  thereon  to  the  extent  of 
the  value  of  his  services.  Such  lien  extends  for  ten  days  after  any 
such  person  ceases  such  work  or  labor;  provided  within  that  time, 
an  action  is  brought  to  recover  the  amount  of  the  claim.  If  judg- 
ment is  given  in  his  favor  in  such  action,  and  it  is  further  found 
that  he  is  entitled  to  a  lien  under  the  provisions  of  this  section,  the 
property  subject  to  such  lien — or  so  much  of  it  as  may  be  necessary 
— may  be  sold  to  satisfy  such  judgment;  but  if  several  judgments 
have  been  recovered  against  the  same  property  for  the  enforcement 


208  LIENS 


of  such  lien,  the  proceeds  of  the  sale  must  be  divided  among-  the 
judg-ment  creditors  pro  rata. 

VENDOR'S  LIEN:  One  who  sells  real  property  has  a  vendor's 
lien  upon  it — independent  of  possession — for  so  much  of  the  price 
as  remains  unpaid  and  unsecured  in  any  manner  than  by  the  per- 
sonal obligation  of  the  buyer  (this  does  not  apply  if  a  mortgage  is 
taken  by  the  seller  for  part  of  the  purchase  price).  (See  Bill  of 
Lading,   2130f;  Warehouse  Receipts,  49.) 

Purchaser's  lien  upon  REAL  PROPERTY:  One  who  pays  to  the 
owner  any  part  of  the  price  of  real  properly,  under  an  ag)-eement 
for  the  sale  thereof,  has  a  special  lien  upon  the  property — inde- 
pendent of  possession — for  such  part  of  the  amount  paid  as  he  may 
be  entitled  to  recover  back,  in  case  of  a  failure  of  consideration. 
These  liens  described  in  the  foregoing  paragraphs  are  valid  against 
every  one  claiming  under  the  debtor — except  a  purchaser  or  en- 
cumbrancer in  good  faith,  and  for  value.  And  when  a  buyer  of 
real  property  gives  to  the  seller  a  written  contract  for  payment  of  all 
or  part  of  the  price,  an  absolute  transfer  of  such  contract  by  the 
seller  waives  his  lien  to  the  extent  of  the  sum  payable  under  the 
contract;  but  a  transfer  of  such  contract  in  trust  to  pay  debts, 
and  to  return  the  surplus — is  not  such  a  waiver. 

A  VETERINARY  hospital  proprietor  or  surgeon  has  a  lien  on 
any  stock,  or  animals,  in  his  possession,  for  the  benefit  of  which 
he  has  rendered  services  or  care.     See  Personal  Property  lien. 

WAGES:  See  Seaman's  Lien.  When  any  assignment,  whether 
voluntary  or  involuntary,  is  made  for  the  benefit  of  creditors  of  the 
assignor,  or  results  from  any  proceeding  in  insolvency  commenced 
against  him— the  wages  and  salaries  of  mechanics,  miners,  sales- 
men, servants,  clerks,  laborers  and  other  persons  for  services  ren- 
dered for  him  within  sixty  days  before  such  assignment,  or  to  the 
commencement  of  such  proceeding,  and  not  exceeding  one  hundred 
dollars  each' — constitute  preferred  claims,  and  must  be  paid  by  the 
trustee  or  assignee  before  the  claim  of  any  other  creditor  of  the 
assignor  or  insolvent.  Upon  the  death  of  any  employer,  the  wages 
of  each  miner,  mechanic,  salesman,  clerk,  servant,  laborer,  or  other 
employee  (not  to  exceed  one  hundred  dollars),  for  work  done  or 
services  rendered  within  sixty  days  before  such  death,  must  be  paid 
before  any  other  claim  against  the  estate  of  such  employer,  except 
his  funeral  expenses,  and  the  expenses  of  his  last  sicknss,   the  al- 


LIENS  209 


lowance  to  the  widow  and  infant  children,  and  the  charges  and  ex- 
penses of  administration.  Upon  the  levy  of  any  attachment  or  exe- 
cution, not  founded  upon  a  claim  for  labor,  any  miner,  mechanic, 
salesman,  servant,  clerk,  or  laborer,  or  other  person  who  has  per- 
formed work  or  rendered  services  for  the  defendant  within  sixty 
days  before  the  levy,  may  file  a  verified  statement  of  his  claim  for 
it  with  the  officer  executing  the  writ  (and  give  copies  of  it  to  the 
debtor  and  the  creditor),  and  such  claim — not  exceeding  one  hun- 
dred dollars — unless  disputed,  must  be  paid  by  such  officer  from  the 
proceeds  of  such  levy  remaining  in  his  hands  at  the  filing  of  such 
statement.  If  any  claim  is  disputed,  within  five  days  after  receiv- 
ing the  copy  of  it,  the  claimant  must  (within  ten  days  afterwards) 
commence  an  action  for  the  recovery  of  the  demand.  Unless  such 
action  is  prosecuted  with  due  diligence,  his  claim  for  priority  of 
payment  is  forever  barred. 

If  the  claim  is  disputed,  either  the  debtor  or  creditor  must  file 
with  the  officer  a  verified  statement  denying  that  any  part  of  such 
claim  is  due  for  services  rendered  within  60  days  next  preceding  the 
levy,  or  denying  that  any  part  of  such  claim  (except  a  specified 
sum)  is  so  due.  If  a  part  of  the  claim  is  admitted  to  be  due,  and 
the  claim  is  admitted  to  be  due,  and  the  claimant  brings  suit  and 
does  not  recover  more  than  the  amount  so  admitted,  he  cannot  re- 
cover costs — but  costs  will  be  adjudged  against  him. 

WAREHOUSEMAN'S  LIEN: 

Sec.  27.  Subject  to  the  provisions  of  section  thirty,  a  ware- 
houseman shall  have  a  lien  on  goods  deposited  by  the  owner  or  by 
the  legal  possessor  of  the  property  or  on  the  proceeds  of  it  in  his 
hands,  for  all  lawful  charges  for  storage  and  preservation  of  th-e 
goods;  also  for  all  lawful  claims  for  money  advanced,  interest,  in- 
surance, transportation,  labor,  weighing,  coopering  and  other 
charges  and  expenses  in  relation  to  such  goods;  also  for  all  reasona- 
ble charges  and  expenses  for  notice,  and  advertisements  of  sale,  and 
for  sale  of  the  goods  where  default  has  been  made  in  satisfying  the 
warehouseman's  lien. 

Sec.  28.  Subject  to  the  provisions  of  section  thirty,  a  ware- 
houseman's lien  may  be  enforced:  (a)  Against  all  goods,  whenever 
deposited,  belonging  to  the  person  who  is  liable  as  debtor  for  the 
claims  in  regard  to  which  the  lien  is  asserted;  and  (b)  Against  all 
goods  belonging  to  others  which  have  been  deposited  at  any  time  by 


210  LTENS 


the  person  who  is  liable  as  debtor  for  the  claims  in  regard  to  which 
the  lien  is  asserted,  if  such  person  was  in  legal  possession  of  the 
goods  when  they  were  deposited. 

Sec.  29.  A  warehouseman  loses  his  lien  upon  goods — (a)  By 
surrendering  possession  of  them,  or  (b)  By  refusing  to  deliver  the 
goods  when  a  demand  is  made  with  which  he  is  bound  to  comply 
under  the  provisions  of  this  act. 

Sec.  30.  If  a  negotiable  receipt  is  issued  for  goods,  the  warehouse- 
man shall  have  no  lien  on  them,  except  for  charges  for  storage  of 
those  goods  subsequent  to  the  date  of  the  receipt,  unless  the  receipt 
expressly  enumerates  other  charges  for  which  a  lien  is  claimed.  In 
such  case  there  shall  be  a  lien  for  the  charges  numerated  so  far 
as  they  are  within  the  terms  of  section  27,  although  the  amount  of 
the  charges  so  enumerated  is  not  stated  in  the  receipt. 

Sec.  31.  A  warehouseman  having  a  lien  valid  against  the  person 
demanding  his  goods  may  refuse  to  deliver  the  goods  to  him  until 
the  lien  is  satisfied. 

Sec.  32.  Whether  or  not  a  warehouseman  has  or  has  not  a  lien 
upon  the  goods,  he  is  entitled  to  all  remedies  allowed  by  law  to  a 
creditor  against  his  debtor,  for  the  collection  from  the  depositor  of 
all  charges  and  advances  which  the  depositor  has  expressly  or  im- 
pliedly contracted  with  the  warehouseman   to  pay. 

Sec.  33.  A  warehouseman's  lien  for  a  claim  which  has  become  due 
may  be  satisfied  as  follows:  The  warehouseman  shall  give  a  v,Titten 
notice  to  the  person  on  whose  account  the  goods  are  held,  and  to  any 
other  person  known  by  the  warehouseman  to  claim  an  interest  in 
the  goods.  Such  notice  shall  be  given  by  delivery  in  person  or  by 
registered  letter  addressed  to  the  last  known  place  of  business  or 
abode  of  the  person  to  be  notified.  The  notice  shall  contain — (a) 
An  itemized  statement  of  the  v/arehouseman's  claim,  showing  th« 
sum  due  at  the  time  of  the  notice  and  the  date  or  dates  when  it  be- 
came due.  (b)  A  brief  description  of  the  goods  against  which  the 
lien  exists,  (c)  A  demand  that  the  amount  of  the  claim  as  stated 
in  the  notice,  and  of  such  further  claim  as  shall  accrue  shall  be  paid 
on  or  before  th«  day  mentioned,  not  less  than  ten  days  from  the  de- 
livery of  the  notice  if  it  is  personally  delivered,  or  from  the  time 


LTENS  211 


when  the  notice  should  reach  its  destination,  according  to  the  due 
course  of  post,  if  the  notice  is  sent  by  mail,  and  (d)  A  statement 
that  unless  the  claim  is  paid  within  the  time  specified  the  goods  will 
be  advertised  for  sale  and  sold  by  auction  at  a  specified  time  and 
place. 

In  accordance  with  the  terms  of  a  notice  so  given  a  sale  of  goods 
by  auction  may  be  had  to  satisfy  any  valid  claim  of  the  warehouse- 
man for  which  he  has  a  lien  on  the  goods.  The  sale  shall  be  had  in 
the  place  where  the  lien  was  acquired,  or,  if  such  place  is  manifestly 
unsuitable  for  the  purpose,  at  the  nearest  suitable  place.  After 
the  time  for  the  payment  of  the  claim  specified  in  the  notice  to  the 
depositor  has  elapsed  an  advertisement  of  the  sale,  describing  the 
goods  to  be  sold,  and  stating  the  name  of  the  owner  or  person  on 
whose  account  the  goods  are  held,  and  the  time  and  place  of  the  sale, 
shall  be  published  once  a  week  for  two  consecutive  weeks  in  a  news- 
paper published  in  the  place  where  such  sale  is  to  be  held.  The  sale 
shall  not  be  held  less  than  fifteen  days  from  the  time  of  the  first 
publication.  If  there  is  no  newspaper  published  in  such  place,  the 
advertisement  shall  be  posted  at  least  ten  days  before  such  sale  in  not 
less  than  six  conspicuous  places  in  it.  From  the  proceeds  of  such  sale 
the  warehouseman  shall  satisfy  his  lien,  including  the  reasonable 
charges  of  notice,  advertisement  and  sale.  The  balance,  if  any,  of 
such  proceeds  shall  be  held  by  the  warehouseman  and  delivered  on 
demand  to  the  person  to  whom  he  would  have  been  bound  to  deliver 
or  justified  in  delivering  the  goods.  At  any  time  before  the  goods 
are  sold  any  person  claiming  a  right  of  property  possession  in  them 
may  pay  the  warehouseman  the  amount  necessary  to  satisfy  his  lien 
and  pay  the  reasonable  expenses  and  liabilities  incurred  in  serving 
notices  and  advertising  and  preparing  for  the  sale  up  to  the  time 
of  Buch  payment.  The  warehouseman  shall  deliver  the  goods  to  the 
person  making  such  payment  if  he  is  a  person  entitled  under  the 
provisions  of  this  act,  to  the  possession  of  the  goods  on  payment  of 
charges  thereon.  Otherwise  the  warehouseman  shall  retain  posses- 
sion of  the  goods  according  to  the  terms  of  the  original  contract 
of  deposit. 

Sec.  34.  If  goods  are  of  a  perishable  nature,  or  by  keeping  will 
deteriorate  greatly  in  value,  or  by  their  odor,  leakage,  inflammabil- 
ity, or  explosive  nature,  will  be  liable  to  injure  other  property,  the 


212  LIMITATIONS 


warehouseman  may  give  such  notice  to  the  owner,  or  to  the  person 
in  whose  name  the  goods  are  stored  (as  is  reasonable  and  possible 
under  the  circumstances),  to  satisfy  the  lien  upon  such  goods,  and  to 
remove  them  from  the  Avarehouse,  and  in  the  event  of  the  failure  of 
such  person  to  satisfy  the  lien  and  to  remove  the  goods  within  the 
time  so  specified,  the  warehouseman  may  sell  the  goods  at  public 
or  private  sale  without  advertising.  If  the  v/arehouseman  after  a 
reasonable  effort  is  unable  to  sell  such  goods,  he  may  dispose  of  them 
•in  any  lawful  .manner,  and  shall  incur  no  liability  by  reason  of  so 
doing.  The  proceeds  of  any  sale  made"  under  the  terms  of  this  sec- 
tion shall  be  disposed  of  in  the  same  way  as  the  proceeds  of  sales 
made  under  the  terms  of  the  preceding  section. 

Sec.  35.  The  remedy  for  enforcing  a  lien  herein  provided  does  not 
include  any  other  remedies  allowed  by  law  for  the  enforcment  of  a 
lien  against  personal  property  nor  bar  the  right  to  recover  so  much 
of  the  warehouseman's  claim  as  shall  not  be  paid  by  th«  proceeds  of 
the   sale   of   the   property. 

Sec.  36.  After  goods  have  been  lawfully  sold  to  satisfy  a  ware- 
houseman's lien,  or  have  been  lawfully  sold  or  disposed  of  because 
of  their  perishable  or  hazardous  nature,  the  warehouseman  shall  not 
thereafter  be  liable  for  failure  to  deliver  the  goods  to  the  depositor, 
or  owner  of  the  goods  or  to  a  holder  of  the  receipt  given  for  the 
goods  when  they  were  deposited,  even  if  such  receipt  be  negotiable. 

Life  Insurance:      See  Insurance. 

Liquidated  Damages:  Every  contract  by  which  the  amount  of 
damage  to  be  paid,  or  other  compensation  to  be  made,  for  a  breach 
of  an  obligation — is  determined  in  anticipation  of  it — is  to  that 
extent  void;  except  that  these  parties  may  agree  in  the  contract 
that  an  amount  which  shall  be  presumed  to  be  the  amount  of  dam- 
age sustained  by  a  breach  of  it,  when — from  the  nature  of  the  case, 
it  would  be  impracticable  or  extremely  difficult  to  fix  the  actual 
damage.     See  Contracts. 

Statute  of  Limitations,  or  the  time  in  which  certain  rights  of 
action  outlaw,  or  the  period  after  which  an  action  based  upon  these 
causes  can  not  be  brought. 

ACCOUNT  STATED — four  years. 

ADVERSE  POSSESSION — three  years. 

ASSESSMENTS  (to  recover  stock  sold  for  non-payment  of)  — 
six  months  from  date  of  sale. 


LIMITATIONS  213 


ATTORNEY'S  FEE— begins  at  performance  of  each  item,  and 
runs  for  two  years  (but  see  Account  Stated)  ;  a  division  of,  between 
attorneys — two  years. 

BATTERY — one  year  from  the  act. 

BOND — of  g-uardian,  two  years;  notary's,  four  years  from  the 
time  of  the  act. 

BOOK   ACCOUNT — balance    on — four   years;    open,    four   years. 

CHATTELS;  injury  to,  by  wrongful  act — three  years. 

CLAIM  AND  DELIVERY — three  years  after  the  article  was 
taken. 

COMMUNITY  PROPERTY — action  by  husband  to  recover — one 
year  after  wife's  deed. 

CONSTABLE — for  doing  an  act  in  his  official  capacity  and  by 
virtue  of  his  office,  or  by  the  omission  of  an  official  duty,  including 
nonpayment  of  money  collected  upon  an  execution — two  years  after 
the  liability  was  incurred. 

CONTRACT — in  writing,  made  in  this  state — four  years  from 
maturity;  made  out  of  this  state,  two  years;  oral,  or  implied  con- 
tract, two  years  after  maturity — or  (in  case  of  fraudulent  con- 
cealment, then  after  discovery). 

CONTRIBUTION — two  years  after  payment  by  one  party. 

COUNTY — claims  against — six  months  after  claim  is  first  re- 
jected by  the  Board  of  Supervisors  to  whom  it  has  been  presented. 

CRIMES;  no  limit  for  murder,  embezzlement  of  public  funds,  or 
the  falsification  of  public  records;  for  any  other  felony,  an  indict- 
ment must  be  found,  or  an  information  filed,  within  three  years 
after  its  commission;  for  misdemeanor,  within  one  year  after  its 
commission. 

DEATH;  damages  for,  by  wrongful  act;  two  years. 

DEPOSITORY  for  hire — one  year  after  storage  charges  not  paid. 

DETAINING  goods — three  years. 

DIRECTORS — three  years  for  certain  acts  and  no  limitation 
for   others. 

DIVORCE;  adultery — two  years  after;  desertion,  neglect,  in- 
temperance, one  year  continuing;  felony,  two  years  after  pardon; 
after  condonation,  two  years. 

EXECUTION  LIEN,  five  years  after  entry  of  judgment,  but  exe- 
cution issued  at  any  time  after  by  order  of  court. 

FALSE  IMPRISONMENT,  one  year  after  the  act. 


214  LIMITATIONS 


FELONY,  three  years  after  commission  of  the  act. 

FORFEITURE    (under  a  statute)   one  year. 

FRAUD,  three  years  after  the  fraud  is  discovered;  in  conveying 
real  property,  to  set  aside  deed  by  creditors,  five  years  from  date 
of  judj^ment,  or  sale  of  property. 

FRUIT  TREES;  prosecution  for  misbranding,  seven  years. 

GUARDIAN,  Ward  against;  three  years. 

I.  O.  U. ;  four  years. 

JUDGMENT,  to  vacate  void,  four  years;  lien  of,  five  years  (do- 
mestic) ;  foreign,  four  years,  or  within  the  time  set  by  laws  of 
that  state. 

LIENS — See   each  lien,   as   each   differs. 

LIBEL — one  year  after  the  libel  was  uttered,  ©r  published. 

MALICIOUS  PROSECUTION;  two  years  after  act. 

MISDEMEANOR — one  year  after  the  act  committed. 

MISTAKE — three    years   after   discovery. 

MORTGAGE — four  years  after  its  due  date;  breach  of  condition 
in  the  instrument — five  years;  to  redeem  from  sale — one  year  from 
date  of  sale. 

NEGLIGENCE,  except  personal  injuries — two  years  after  act 
committed. 

PENALTY  under  statute;  one  year  after  act  committed. 

PERSONAL  PROPERTY — taking,  detaining  or  injuring;  three 
years. 

PERSONAL  INJURIES — one  year  after  injury  sustained  (but 
see  Stockholders'  Liability). 

QUIET  TITLE— five  years. 

REAL  PROPERTY;  to  recover,  by  private  person — five  years  after 
being  deprived  of  possession;  to  redeem  from  lien — five  years  from 
adverse  possession;  to  redeem  from  sale  under  execution — one  year 
after  sale;  to  recover  from  sale  by  executor — three  years  after  final 
account  of  estate. 

SEDUCTION — one  year  after  act. 

SEIZURE  of  personal  property  by  officer — six  months  after. 

SIEZEN;  breach  of  covenant  of — two  years  after  breach. 

SLANDER — same   as   libel. 

STOCKHOLDERS'  LIABILITY — is  primary;  three  years  from 
time  right  of  action  accrues,  including  torts. 


LIMITATIONS  215 


STREET  ASSESSMENTS  period  is  fixed  in  each  case  by  the 
statute  creating  it. 

STORAGE — see  depository. 

TAXES,  paid  under  protest — six  months  after  payment. 

TRESPASS — on  real  property — three  years  after  the  act  is 
committed;  or  if  its  commission  concealed  by  fraud,  then  three 
years  after  discovery  of  the  act. 

TRUST — express — four  years  after  trustee  repudiates;  construc- 
tive or  implied — four  years  after  inception. 

UNLAWFUL  DETAINER — one  year. 

Events  which  change  the  operation  of  the  time  of  the  statute;  if 
the  debtor  dies  before  action  is  brought,  the  time  is  extended  one 
year  after  letters  testamentary  are  issued  (but  not  if  the  cause  of 
action  is  one  based  upon  torts — such  as  slander,  negligence,  etc). 
If  the  creditor  dies,  the  period  is  extended  six  months,  provided  the 
cause  of  action  survives,  as  in  the  case  of  debtor.  If  the  debtor 
leaves  the  state — the  time  is  suspended  while  he  is  away.  If  the 
debtor  is  person  with  whom  this  country  is  at  war,  time  is  suspended 
until  war  ended.  If  injunction  issued,  suspended  during  the  time 
it  is  in  force.  A  written  acknowledgment  will  begin  a  new  time  to 
run,  or  a  promise  to  pay  "wh«n  able"  will  extend  the  time  indefinitely. 
Such  written  acknowledgment  must  be  a  distinct,  unqualified,  uncon- 
ditional recognition  of  the  obligation  for  which  the  person  making 
such  admission  is  liable.  The  following  words,  in  a  letter,  are  not 
such  promise:  "I  loaned  a  party  some  money,  which  he  promised 
sure  by  next  month  I  would  get  $300  of  it.  Should  I  succeed  in 
this  I  will  send  you  sure  $150  or  $200  on  account.  At  the  present 
time  I  can  not  do  anything  on  account  I  have  not  it." 

Payment  on  account  does  not  extend  the  time,  or  renew  it. 

Lis  Pendens:  (literally)  pendency  of  action;  is  a  notice  which 
is  filed  with  the  County  Recorder  at  any  time  when  a  law  suit 
is  pending  which  involves  the  title  to  real  property.  This  serves  to 
create  a  temporary  cloud  upon  the  property,  so  that  no  one  will  buy, 
sell  or  incumber  it  until  the  suit  is  finally  determined  or  settled. 

Livery  Stable  Keeper.  See  Liens.  Every  owner,  manager,  pro- 
prietor, or  other  person,  having  the  management,  charge  or  control 
of  any  livery  stable,  feed,  or  boarding  stable,  and  every  person  pas- 
turing stock,  who  shall  receive  and  take  into  his  possession,  charge, 
care  or  control,  any  horse,  mare,  or  other  animal,  or  any  buggy  or 


216  LIMITATIONS 


other  vehicle,  belonging  to  any  other  person,  to  be  by  him  kept,  fed 
or  cared  for,  and  who  (while  said  horse,  mare  or  other  animal  or 
buggy  or  other  vehicle,  belonging  to  any  other  person,  to  be  by  him 
kept,  fed  or  cared  for,  and  who  (while  said  horse,  mare  or  other 
animal  or  buggy  or  other  vehicle),  is  thus  in  his  possession,  charge, 
care  or  under  his  control,  as  aforesaid,  shall  drive,  ride  or  use,  or 
knowingly  permit  or  allow  any  person  other  than  the  owner  or  other 
person  entitled  so  to  do,  to  ride,  drive,  or  otherwise  use  the  same, 
without  the  consent  or  permission  of  the  owner  of  it,  or  other  per- 
son charged  with  the  care,  control  or  possession  of  such  property, 
shall  be  guilty  of  a  misdemeanor. 

Live-Stock  Lien:      See   Liens. 

Loan:     See  Interest;  Personal  Property;  Pledge;  Depository. 

A  loan  of  money  is  a  contract  by  which  one  delivers  a  sum  of 
money  to  another,  and  the  latter  agrees  to  return  at  a  future  time 
the  sum  equivalent  to  that  which  was  borrowed.  (A  loan  for  mere 
use  is  explained  by  the  article  on  loan  for  use.)  A  borrower  of 
money  (unless  there  is  an  express  contract  to  the  contrary),  must 
pay  the  amount  due  in  such  money  as  is  current  at  the  time  when 
the  loan  becomes  due,  whether  such  money  is  worth  more  or  less 
than  the  actual  money  lent.  (Such  as  "Gold  Coin  of  U.  S.  of  cur- 
rent weight  and  fineness.")  Whenever  a  loan  of  money  is  made,  it 
is  presumed  to  be  made  upon  interest,  unless  it  is  otherwise  ex- 
pressly agreed  at  the  time  in  writing.     See  Interest. 

A  LOAN  OF  EXCHANGE  is  a  contract  by  which  one  delivers  per- 
sonal property  to  another,  and  the  latter  agrees  to  return  to  the 
lender  a  similar  thing  at  a  future  time,  without  reward  for  its  use. 
In  such  loan  the  title  to  the  thing  lent  is  transferred  to  the  borrower, 
and  he  must  bear  all  its  expenses,  and  is  entitled  to  all  its  increase. 
A  lender  for  exchange  cannot  require  the  borrower  to  fulfill  his 
obligations  at  a  time,  or  in  a  manner,  different  from  that  which  was 
originally  agreed  upon. 

A  LOAN  OF  USE  is  a  contract  by  which  one  gives  to  another 
the  temporary  possession  and  use  of  personal  property,  and  the 
latter  agrees  to  return  the  same  thing  to  him  at  a  future  time, 
without  reward  for  its  use.  This  does  not  transfer  the  title  to  the 
thing;  and  all  its  increase  during  the  period  of  the  loan  belongs 
to  the  lender.  One  who  borrows  a  living  animal  for  use,  must  treat 
it  with  great  kindness,  and  provide  everything  necessary  and  suitable 


LUMBER  217 


for  it.  A  borrower  for  use  must  use  great  care  for  the  preservation 
in  safety  and  in  good  condition  of  the  thing  lent;  he  is  bound  to  have 
and  to  exercise  such  skill  in  the  care  of  the  thing  lent  as  he  causes 
the  lender  to  believe  him  to  possess.  He  may  use  it  for  such  purposes 
only  as  the  lender  might  reasonably  anticipate  at  th«  time  of  lend- 
ing, and  must  repair  all  deterioration  or  injuries  to  the  thing  lent, 
which  are  occasioned  by  his  negligence,  however  slight.  He  must 
not  part  with  it  to  a  third  person,  without  the  consent  of  the  lender, 
and  must  bear  all  its  expenses  during  the  loan,  except  such  as  are 
necessarily  incurred  by  him  to  preserve  it  from  unexpected  and 
unusual  injury.  For  such  expenses  he  is  entitled  to  compensation 
from  the  lender,  who  may,  however,  exonerate  himself  by  surren- 
dering the  thing  to  the  borrower.  He  must  return  it  to  the  lender, 
at  the  place  contemplated  by  the  parties  at  the  time  of  lending;  or 
if  no  particular  place  was  contemplated  by  them,  then  at  the  place 
where  it  was  when  loaned. 

The  lender  of  a  thing  for  use  must  indemnify  the  borrower  for 
damage  caused  by  defects  or  vice  in  it,  which  he  knew  at  the  time 
of  lending,  and  concealed  from  the  borrower.  He  may  at  any  time 
require  its  return,  even  though  he  lent  it  for  a  specified  time  or 
pui-pose.  But  if,  on  the  faith  of  such  an  agreement,  the  borrower 
has  made  such  arrangements  that  a  return  of  the  thing  before  the 
period  agreed  upon  would  cause  him  loss  (exceeding  the  benefit  de- 
rived by  him  from  the  loan),  the  lender  must  indemnify  him  for  such 
loss,  if  he  compels  such  return,  and  if  the  borrower  has  not  in  any 
manner  violated  his  duty  toward  the  lender.  If  a  thing  is  lent  for 
xise  for  a  specified  time  or  purpose,  it  must  be  returned  to  the  lender 
without  demand,  as  soon  as  the  time  has  expired,  or  the  purpose 
has  been  accomplished.  In  other  cases  it  need  not  be  returned  until 
demand.  A  loan,  which  the  borrower  is  allowed  by  the  lender  to 
treat  as  a  loan  for  use,  or  for  exchange,  at  his  option,  is  subject 
to  all  the  provisions  of  this  article. 

LoA^er:     See  Landlord  and  Tenant. 

Lodging  House:     See  Liens;  Inns;  Hotel. 

Logger:     See  Lumber;  Liens;  Personal  Property;  Real  Estate. 

Luggage:     See  Carriers;  Hotels;  Liens. 

Lumber:  See  Logger's  Lien;  Personal  Property;  Fixtures,  under 
Real  Estate.  The  word  "lumber"  is  used  in  this  article  to  desig- 
nate   all    timber,   whether   in    logs,    boards,   planks,    or   beams,    and 


218  MAILS 


whether  in  rafts  or  otherwise,  but  does  not  include  the  sort  of  wood 
commonly  called  driftwood.  Whenever  any  lumber  drifts  upon  any 
island  in  any  of  the  waters  of  this  state,  or  upon  the  bank  of  any 
such  waters,  th«  ov/ners  of  the  lumber  may  remove  it  on  payment 
or  tendering:  to  the  owner  or  occupant  of  the  land  the  amount  of 
the  damag:es  which  he  has  sustained  by  reason  thereof,  and  which 
may  accrue  in  its  removal;  and  if  the  parties  cannot  agree  as  to 
the  amount  of  such  damages,  either  party  may  have  the  same  ap- 
praised by  two  disinterested  citizens  of  the  county,  who  may  hear 
proofs  and  determine  the  same  at  the  expense  of  the  owner  of  the 
lumber.  If  the  owner  of  such  lumber  does  not,  within  three  months 
from  the  time  it  was  so  drifted,  take  the  same  away,  the  owner  or 
occupant  of  the  land  must  deliver  a  bill  of  his  charges  and  appraise- 
ment of  damages,  together  with  the  lumber,  to  the  sheriff  of  the 
county,  and  thereafter  the  sheriff  must  dispose  of  the  same  as  re- 
quired with  regard  to  wrecked  perishable  property.  When  sold,  the 
proceeds  of  the  lumber  must  be  applied,  first,  to  the  payment  of  the 
charges  of  sale,  and  in  liquidation  of  the  expenses  and  damages 
awarded  to  the  person  entitled  to  it;  and  the  residue  must  be  paid 
to  the  county  treasurer,  to  be  by  him  paid  over  to  the  owner,  or  his 
representatives  or  assigns,  on  the  production  of  satisfactory  proof 
of  ownership  to  the  judge  of  the  Superior  Court  of  the  county,  and 
on  his  order  therefor,  made  vdthin  one  year  after  its  receipt.  The 
rejection  by  the  judge  of  any  claimant's  right  to  such  proceeds  is 
conclusive,  unless  within  six  months  thereafter  he  commences  action 
therefor.  In  case  no  claim  is  made  or  sustained  to  such  proceeds 
the  same  must,  by  the  county  treasurer,  be  placed  in  the  common- 
school  fund  of  the  county. 

Mails,  Use  of  to  Defraud:  While  this  is  strictly  a  United  States 
statute,  yet  it  affects  everybody,  as  it  concerns  the  mail  privilege. 
It  is  intended  to  prevent  a  fraudulent  scheme  by  mail — that  is,  by 
letter,  postal,  package,  parcel,  circular,  advertisment  in  a  news- 
paper which  is  mailed, — a  scheme  devised  or  intended  to  be  devised 
to  defraud  or  obtaining  money  or  property  by  means  of  false  pre- 
tenses, and  (2)  for  the  purpose  of  executing  such  scheme,  or  at- 
tempting to  do  so,  to  place  any  letter  in  any  post  office  of  the  U.  S. 
to  be  sent  or  delivered  by  the  post  office  establishment.  Each  letter 
would  be  a  separate  offense. 

Maker:     See  Negotiable  Instruments,  113142,  3144,  3145. 


MASTER  AND  SERVANT  219 


Malice,  in  its  legal  sense,  means  a  wrongful  act,  done  intentionally, 
without  cause  or  excuse.  In  actions  of  libel  and  slander,  it  is  divided 
into  two  classes;  malice  in  law  and  malice  in  fact.  Malice  in  fact 
is  a  spiteful  or  rancorous  disposition  which  causes  an  act  to  be  done 
for  mischief. 

Malicious  Prosecution:  One  who  causes  another  to  be  prosecuted 
(arrested,  imprisoned,  or  tried)  for  a  crime,  is  liable  in  damages, 
provided  he  acted  through  malice  and  without  probable  cause.  Malice 
is  an  evil  or  sinister  motive  actuating  the  person  who  began  the  ac- 
tion; it  may  be  inferred  from  want  of  probable  cause;  but  want 
of  probable  cause  cannot  be  presumed  from  malice.  Probable  cause 
is  the  suspicion  founded  upon  circumstances  strong  enough  to  war- 
rant a  reasonable  man  to  believe  that  the  charge  was  true;  a  mere 
belief  in  guilt  is  not  enough,  nor  advice  of  counsel;  nor  dismissal 
of  the  criminal  charge.  But  if  a  person  had  consulted  an  attorney  at 
law  in  good  standing,  and  had  related  all  the  facts  to  him,  and  had 
been  advised  by  him  that  he  had  probable  cause — this  would  be 
enough.  An  action  for  malicious  prosecution  must  be  brought  within 
four  years,  if  based  upon  a  criminal  charge;  and  within  two  years, 
if  based  upon  a  civil  action,  such  as  wrongful  attachment. 

Manufacturers'  Lien:     See  Lien  of  Personal  Property;  Accession. 

Marine   Insurance:      See   Insurance. 

Mark:     See  Signature,  under  Real  Estate;  Trade  Mark. 

Market  Value  is  the  price  for  which  an  equivalent  could  be  rea- 
sonably and  fairly  purchased  at  or  near  the  place  where  the  mer- 
chandise should  have  been  delivered,  and  within  a  reasonable  time 
after  refusal  to  deliver.  Of  land;  is  the  highest  price  estimated  in 
terms  of  money  which  the  land  would  bring  if  exposed  to  sale  in 
the  open  market.  Of  a  commodity;  the  highest  price  in  the  market 
where  it  is  offered  for  sale  to  those  having  the  inclination  and  means 
to  pay  for  it. 

Master  and  Servant:  A  servant  is  one  who  is  employed  to  render 
personal  service  to  his  employer,  otherwise  than  in  the  pursuit  of 
an  independent  calling,  and  who  in  such  service  remains  entirely 
under  the  control  and  direction  of  the  latter,  who  is  called  his  mas- 
ter. A  servant  is  presumed  to  have  been  hired  for  such  length  of 
time  as  the  parties  adopt  for  the  estimation  of  wages.  A  hiring 
at  a  yearly  rate  is  presumed  to  be  for  one  year;  a  hiring  at  a  daily 


220  MASTER  AND  SERVANT 


rate,  for  one  day;  a  hiring  by  piecework,  for  no  specified  term.  In 
the  absence  of  any  agreement  or  custom  as  to  the  term  of  service, 
the  time  of  payment,  or  the  rate  of  value  of  wages,  a  servant  is  pre- 
sumed to  be  hired  by  the  month,  at  a  monthly  rate  of  reasonable 
wages,  to  be  paid  when  the  service  is  performed  .  Where,  after  the 
expiration  of  an  agreement  respecting  the  wages  and  the  term  of 
service,  the  parties  continue  the  relation  of  master  and  servant,  they 
are  presumed  to  have  renewed  the  agreement  for  the  same  wages 
and  term  of  service.  The  entire  time  of  a  domestic  servant  belongs 
to  the  master;  and  the  time  of  other  servants  to  such  an  extent  as 
is  usual  in  the  business  in  which  they  serve,  not  exceeding  in  any 
case  ten  hours  in  the  day.  All  the  services  rendered  by  one  who 
receives  a  regular  salary,  if  of  the  same  nature  as  his  regular  duties, 
are  presumed  to  be  paid  for  by  the  salary.  A  servant  must  deliver 
to  his  master,  as  soon  as  with  reasonable  diligence  he  can  find  him, 
everything  that  he  receives  for  his  account,  without  demand;  but 
he  is  not  bound,  without  orders  from  his  master,  to  send  anything  to 
him  through  another  person.  A  master  may  discharge  any  servant, 
other  than  an  apprentice,  whether  engaged  for  a  fixed  term  or  not: 
1.  If  he  is  guilty  of  misconduct  in  the  course  of  his  service,  or  of 
gross  immorality,  though  unconnected  with  the  same;  or,  2.  If, 
being  employed  about  the  person  of  the  master,  or  in  a  confidential 
position,  the  master  discovers  that  he  has  been  guilty  of  misconduct, 
before  or  after  the  commencement  of  his  service,  of  such  a  nature 
that,  if  the  master  had  known  or  contemplated  it,  he  would  not  have 
employed  him.  If  a  servant  abandons  or  departs  from  the  business  of 
his  master  and  engages  in  some  matter  suggested  solely  by  his  own 
pleasure  or  convenience,  or  pursues  some  object  which  relates  to 
an  end  or  purpose  which  may  be  said  to  be  the  servant's  individual 
and  exclusive  business,  and,  while  so  engaged,  the  servant  commits 
a  tort,  the  master  is  not  answerable,  although  the  servant  was  using 
the  master's  property,  and  although  the  injury  would  not  have  been 
caused  without  the  facilities  afforded  to  the  servant  by  reason  of  his 
relations  to  the  master. 

Master  and  Servant:  "The  liability  of  the  master  can  only  occur 
when  that  which  is  done  is  within  the  real  or  apparent  scope  of  the 
master's  employment.  It  does  not  arise  when  the  servant 
steps  outside  of  his  employment  to  do  an  act  for  himself,  not  con- 
nected  with  the   master's   business.      Beyond    the   scope    of   his   em- 


MINE  221 


ployment  the  servant  is  as  much  a  stranger  to  his  master  as  any  third 
person.  The  master  is  only  responsible  so  long  as  the  servant  can 
be  said  to  be  doing  the  act  in  the  doing  of  which  he  is  guilty  of  neg- 
ligence in  the  course  of  his  employment.  A  master  is  not  respon- 
sible for  any  act  or  omission  of  his  servant  v^^hich  is  not  connected 
with  the  business  in  which  he  serves  him,  and  does  not  happen  in 
the  course  of  his  employment.  And  to  determine  whether  a  par- 
ticular act  is  done  in  the  course  of  the  servant's  employment  it  is 
proper  first  to  inquire  whether  the  servant  was  at  the  time  engaged 
in  serving  his  master.  If  the  act  be  done  while  the  servant  is  at 
liberty  from  the  service,  and  pursuing  his  own  ends  exclusively,  the 
master  is  not  responsible.  If  the  servant,  at  the  time  the  injury  was 
inflicted,  was  acting  for  himself  and  as  his  own  master  temporarily, 
the  master  is  not  liable.  If  the  servant  step  aside,  from  his  master's 
business,  for  however  so  short  a  time  to  do  an  act  not  connected 
with  such  business,  the  relation  of  master  and  servant  is  for  the 
time  suspended. 

Maturity:  See  Contracts;  Limitations;  Negotiable  Instruments, 
P166. 

Measure  of  Damages  is  the  amount  of  money  which  is  supposed 
to  recompense  the  plaintiff  for  the  injury  which  he  has  suffered,  or 
repay  him  for  his  financial  loss. 

Mechanics'  Lien:      See  Liens. 

Menace:  Menace  consists  in  a  threat:  1.  Of  such  Duress  as  is 
described  in  its  definition.  2.  Of  unlawful  and  violent  injury  to 
the  person  or  property  of  any  such  person  as  is  specified  in  the  last 
section;  or,  3.  Of  injury  to  the  character  of  any  such  person.  See 
contracts. 

Mine:  See  Directors;  Corporations.  While  the  locator  of  mining 
claims  derives  his  title  from  the  Federal  Government,  and  must  obey 
and  follov/  Federal  laws  on  the  subject,  yet — as  California  has  fol- 
lowed this  U.  S.  Statutes,  it  is  the  California  code  rules  which  are 
quoted  here.  The  United  States  statutes  also  authorize  local  cus- 
toms or  rules  providing  for  additional  regulations  for  the  purpose 
of  completing  the  location  of  mining  claim.  Seemingly  any  rea- 
sonable regulation  can  be  made,  as  long  as  it  does  not  conflict  with 
the  lav^^s  of  the  United  States,  and  miners  rules  have  just  as  much 
force  as  statutes.  The  proceeding  of  miners  in  the  location  of  their 
mining  claims  are  to  be  regarded  v/ith  indulgence,  and  their  notices 


222  MINING  LAW 


of  location  are  to  be  liberally  construed.  The  failure  to  comply  with 
any  one  mining  regulation,  or  rule,  cannot  of  itself  ■work  a  forfeit- 
ure of  title,  unless  the  rule  expressly  so  provides. 

The  only  prerequisites  to  the  vesting:  of  possessory  title  to  a  lode 
bearinj?  mineral  claim  in  a  locator  are  (1)  discovery  of  such  a  lode 
within  the  vacant  unappropriated  mineral  land  belonj^inp:  to  the 
United  States,  and  (2)  the  distinct  marking  of  the  boundaries  of 
the  claim  so  that  they  can  be  readily  traced.  Where  minerals  have 
been  found,  and  the  evidence  of  it  is  such  that  a  person  of  ordinary 
prudence  would  be  justified  in  the  further  expenditure  of  his  labor 
and  money  (with  a  reasonable  prospect  of  success  in  developing  a 
valuable  mine),  the  requirements  of  the  statute  have  been  met. 

Any  person,  a  citizen  of  the  United  States,  or  who  has 
declared  his  intention  to  become  such,  who  discovers  a  vein 
or  lode  of  quartz,  or  other  rock  in  place,  bearing  gold,  silver,  cinna- 
bar, lead,  tin,  copper,  or  other  valuable  deposit,  may  locate  a  claim 
upon  such  vein  or  lode,  by  defining  the  boundaries  of  the  claim,  in 
the  manner  hereinafter  described,  and  by  posting  a  notice  of  such 
location,  at  the  point  of  discovery,  which  notice  must  contain:  First 
— The  name  of  the  lode  or  claim.  Second — The  name  of  the  loca- 
tor or  locators.  Third — The  n  amber  of  linnear  feet  claimed  in 
length  along  the  course  of  the  vein,  each  way  from  the  point  of  dis- 
covery, with  the  width  on  each  side  of  the  center  of  the  claim,  and 
the  general  course  of  the  vein  or  lode,  as  near  as  may  be.  Fourth — 
The  date  of  location.  Fifth — Such  a  description  of  the  claim  by 
reference  to  some  natural  object,  or  permanent  monument,  as  will 
identify  the  claim  located.  A  vein  is  a  fissure  or  gouge  or  any  evi- 
dence of  mineralization  which  will  lead  a  practical  miner  from  one 
ore  body  to  another,  and  which  does  so  lead  him  in  the  course  of 
his  work.  The  words  "vein,"  "lode,"  "ledge"  are  to  be  defined  as 
the  terms  are  commonly  used  by  miners  as  the  result  of  their  prac- 
tical experience — and  not  as  technically  defined  by  geologists. 

The  locator  must  define  the  boundaries  of  his  claim  so  that  they 
may  be  readily  traced,  and  in  no  case  shall  the  claim  extend  more  than 
fifteen  hundred  feet  along  the  course  of  the  vein  or  lode,  nor  more 
than  three  hundred  feet  on  either  side  of  it,  measured  from  the 
center  line  of  the  vein  at  the  surface.  Within  thirty  days  after  the 
posting  of  his  notice  of  location  upon  a  lode  mining  claim,  the  lo- 
cator shall  record  a  true  copy  of  it  in  the  office  of  the  county  re- 


MINING  LAW  223 


corder  of  the  county  in  which  such  claim  is  situated,  for  which 
service  the  county  recorder  shall  receive  a  fee  of  one  dollar.  One 
cannot  claim  a  greater  length  in  either  direction  than  he  specifies  in 
his  location  notice;  but  if  he  makes  his  location  too  long,  it  is  voida- 
ble as  to  the  excess,  only,  and  could  be  amended — if  it  can  be  done 
without  injury  to  the  rights  of  others. 

PLACER  CLAIMS  include  all  forms  of  deposit,  excepting  veins  of 
quartz,  or  other  rock  in  place — such  as  alum,  amber,  asphaltum, 
borax,  cement,  coal,  diamonds,  guano,  gypsum,  kaolin  (china  clay), 
gravel,  limestone,  marble,  mica,  onyx,  salt,  sand,  sandstone,  build- 
ing stone,  petroleum,  natural  gas,  brick  and  other  classes  of  clay, 
phosphates,  potash,  slate  for  roofing  purposes,  umber. 

These  claims  can  be  located  in  forty  acre  tracts,  and  be  divided 
into  10  acre  tracts — but  no  more  than  160  acres  for  any  one  person 
or  association  of  persons.  Gravel  deposits  along  the  beds  of  water 
courses  may  be  appropriated,  if  the  stream  is  not  navigable,  and  does 
not  interfere  with  any  riparian  rights;  this  does  not  apply  to  tide 
lands,  but  does  apply  in  forest  reserve  lands. 

The  location  of  a  placer  claim  is  made  by  posting  on  it  upon  a 
tree,  rock  in  place,  stone,  post  or  monument,  a  notice  of  location, 
containing  the  name  of  the  claim,  name  of  locator  or  locators,  date 
of  location,  number  of  feet  or  acreage  claimed,  such  a  description 
of  the  claim  by  reference  to  some  natural  object  or  permanent  mon- 
ument as  will  identify  the  claim  located,  and  by  marking  the  boun- 
daries so  that  they  may  be  readily  traced;  provided,  that  where  the 
United  States  survey  has  been  extended  over  the  land  embraced  in 
the  location,  the  claim  may  be  taken  by  legal  subdivisions  and  no 
other  reference  than  those  of  said  survey  shall  be  required  and  the 
boundaries  of  a  claim  so  located  and  described  need  not  be  staked 
or  monumented.  The  description  by  legal  subdivisions  shall  be 
deemed  the  equivalent  of  marking.  Within  thirty  days  after  the 
posting  of  the  notice  of  location  of  the  placer  claim,  the  locator  shall 
record  a  true  copy  of  it  in  the  office  of  the  county  recorder  of  the 
county  in  which  such  claim  is  situated,  for  which  service  the  re- 
corder shall  receive  a  fee  of  one  dollar. 

The  locator  of  a  TUNNEL  right  or  location,  shall  locate  his  tun- 
nel right  or  location  by  posting  a  notice  of  location  at  the  face  or 
point  of  commencement  of  the  tunnel,  which  must  contain:  First — 
The  name  of  the  locator  or  locators.     Second — The  date  of  the  loca- 


224  MINING  LAW 


tion.  Third — The  proposed  course  or  direction  of  the  tunnel.  Foxirth 
— A  description  of  the  tunnel  with  reference  to  some  natural  object 
or  permanent  monument  as  shall  identify  the  claim  or  tunnel  right. 
The  boundary  line  of  the  tunnel  shall  be  established  by  stakes  or 
monuments  placed  along:  the  lines  at  an  interval  of  not  more  than 
six  hundred  feet  from  the  face  or  point  of  commencement  of  the 
tunnel  to  the  terminus  of  three  thousand  feet  therefrom.  Within 
thirty  days  after  the  posting  of  location  of  the  tunnel  right  or  loca- 
tion, the  locator  shall  record  a  true  copy  of  it  in  the  office  of  the 
county  recorder  of  the  county  in  Avhich  such  claim  is  situated,  for 
which  service  the  recorder  shall  receive  a  fee  of  one  dollar.  If  at 
any  time  the  locator  of  any  mining  claim  heretofore  or  hereafter 
located,  or  his  assigns,  shall  apprehend  that  his  original  location  no- 
tice was  defective,  erroneous,  or  that  the  requirements  of  the  law 
has  not  been  complied  with  before  filing;  or  in  case  the  original  no- 
tice was  made  before  the  passage  of  this  act,  and  he  shall  be  desir- 
ous of  securing  the  benefit  of  this  act,  such  locator,  or  his  assigns, 
may  file  an  additional  notice,  subject  to  the  provisions  of  this  act; 
provided,  that  such  amended  location  notice  does  not  interfere  with 
the  existing  rights  of  others  at  the  time  of  posting  and  filing  such 
amended  notice,  and  no  such  amended  location  notice  or  the 
record  of  it,  shall  preclude  the  claimant  or  claimants 
from  proving  any  such  title  as  he  or  they  may  have  held 
under  previous  locations.  Where  a  locator,  or  his  assigns,  has  the 
boundaries  and  comers  of  his  claim  established  by  a  United  States 
deputy  mineral  survey,  or  a  licensed  surveyor  of  this  state,  and  his 
claim  connected  vAth  the  corner  of  the  public  or  minor  surveys  of 
an  established  initial  point,  and  incorporates  into  the  record  of  the 
claim,  the  fields  notes  of  such  survey,  and  attaches  to  and  files  with 
such  location  notice,  a  certificate  of  the  surveyor,  saying:  First, 
that  said  survey  was  actually  made  by  him,  giving  the  date  of  it; 
Second,  the  name  of  the  claims  surveyed  and  the  location  of  it; 
Third,  that  the  description  incorporated  in  the  declaratory  statement 
is  sufficient  to  identify  such  survey.  This  certificate  becomes  a 
part  of  the  record,  and  such  record  is  prima  facie  evidence  of  the 
facts  contained  in  it. 

MILLSITE:  The  proprietor  of  a  vein  or  lode  claim  or  mine,  or  the 
owner  of  a  quartz  mill  or  reduction  works,  or  any  person  qualified 
by  the  laws  of  the   United   States,  may  locate   not  more  than  five 


MINING  LAW  225 


acres  of  non-material  land  as  a  mill-site.  Such  location  shall  be 
made  in  the  same  manner  as  for  locating  placer  claims.  The  loca- 
tor of  a  mill-site  or  location,  within  thirty  days  from  the  date  of 
his  location,  shall  record  a  true  copy  of  his  location  notice  with  the 
county  recorder  of  the  county  in  which  such  location  is  situated, 
for  which  service  the  recorder  shall  receive  a  fee  of  one  dollar. 

ASSESSMENT  WORK:  The  amount  of  work  done  or  improve- 
ments made  during  each  year  to  hold  possession  of  a  mining  claim 
shall  be  that  prescribed  by  the  laws  of  the  United  States,  to-wit: 
One  hundred  dollars  annually. 

Whenever  a  mine  ov/ner,  company,  or  corporation  shall  have  per- 
formed the  labor  and  made  the  improvements  required  by  law  upon 
any  mining  claim,  the  person  in  whose  behalf  such  labor  was  per- 
formed or  improvements  made,  or  some  one  in  his  behalf,  shall 
within  thirty  days  after  the  time  limited  for  performing  such  labor 
or  making  such  improvements  make  and  have  recorded  by  the  county 
recorder,  in  the  county  in  which  such  mining  claim  is  situated,  an 
aflfiidavit  setting  forth  the  value  of  labor  or  improvements  made,  the 
name  of  the  claim,  and  the  name  of  the  owner  or  claimant  of  said 
claim  at  whose  expense  the  same  was  made  or  performed.  Such 
affidavit,  or  a  copy  of  it,  duly  certified  by  the  county  recorder,  shall 
be  prima  facie  evidence  of  the  performance  of  such  labor  or  the 
making  of  such  improvements,  or  both.  Upon  the  failure  of  any 
claimant  or  mine  owner  to  comply  with  the  conditions  of  this  act 
in  the  performance  of  labor,  or  making  of  improvements  upon  any 
claim,  mine,  or  mining  ground,  the  claim  or  mine  upon  which  such 
failure  occurred  shall  be  opened  to  relocation  in  the  same  manner 
as  if  no  location  of  the  same  had  ever  been  made.  But  if,  previous  to 
relocation,  the  original  locators,  their  heirs,  assigns,  or  legal  repre- 
sentatives, resume  work  upon  such  claim,  and  continue  the  same 
with  reasonable  diligence  until  the  required  amount  of  labor  has 
been  performed  or  improvements  made,  and  the  required  statement 
of  accounts  and  affidavits  filed  with  the  county  recorder,  then  the 
claim  shall  not  be  subject  to  relocation  because  of  previous  failure 
to  file  accounts.  Upon  the  failure  of  any  one  of  the  sevei-al  co-own- 
ers to  contribute  his  portion  of  the  expenditures,  required  hereby, 
the  co-owners  who  have  performed  the  labor  or  made  the  improve- 
ment may,  at  the  expiration  of  the  year,  give  such  delinquent  co- 
owner  personal  notice,  in  writing,  or  by  publication  in  the  newspaper 


226  MINING  LAW 


published  nearest  the  claim  for  at  least  once  a  week  for  ninety 
days;  and  if,  at  the  expiration  of  ninety  days  after  such  notice  in 
writing:  or  publication,  such  delinquent  shall  fail  or  refuse  to  con- 
tribute his  portion  of  the  expenditures  required  by  this  section, 
his  interest  in  the  claim  shall  become  the  property  of  his  co-owners 
who  made  the  required  expenditures.  A  copy  of  such  notice,  to- 
gether with  an  affidavit  showing  personal  service  or  publication,  as 
the  case  may  be,  of  such  notice,  when  filed  or  recorded  with  the  re- 
corder of  deeds  of  the  county  in  which  such  mining  claim  is  situated, 
shall  be  evidence  of  the  acquisition  of  title  of  such  co-owners.  As- 
sessment work  may  consist  of  the  actual  labor  in  and  about  the  claim 
itself  (such  as  blasting  the  rock),  it  may  be  expenditures  made  upon 
drill  holes,  the  expense  of  building  a  road  to  the  claims,  or  even  the 
cost  of  getting  heavy  machinery  to  the  claims.  Where  a  person  or 
company  has  or  may  run  a  tunnel  or  cuts  for  the  purpose  and  in 
good  faith  for  the  purpose  of  developing  a  lode,  lodes,  or  claims 
owned  by  said  person  or  company  or  corporation,  the  money  so  ex- 
pended in  running  said  tunnel  shall  be  taken  and  considered  as  ex- 
pended on  said  lodes  or  claims;  provided,  further,  that  said  lode, 
claim,  or  claims  shall  be  distinctly  marked  on  the  surface  as  pro- 
vided by  law.  All  mining  locations  and  mining  claims  shall  be  sub- 
ject to  a  reservation  of  the  right  of  v/ay  through  or  over  any  mining 
claims,  ditches,  roads,  canals,  cuts,  tunnels,  and  other  easements  for 
the  purpose  of  working  other  mines;  provided,  that  any  danger  occa- 
sioned thereby  shall  be  assessed  and  paid  for  in  the  manner  provided 
by  law  for  land  taken  for  public  use  under  the  right  of  eminent  do- 
main. The  provisions  of  this  act  shall  not  in  any  manner  be  con- 
structed as  affecting  or  abolishing  any  mining  district  or  the  rules 
and  regulations  of  it  within  the  state  of  California.  The  failure  or 
neglect  of  any  locator  of  a  mining  claim  to  perform  development 
work  of  the  character,  in  the  manner  and  within  the  time  required 
by  the  laws  of  the  United  States,  shall  disqualify  such  locators  from 
relocating  the  ground  embraced  in  the  original  location  or  mining 
claim  or  any  part  of  it  under  the  mining  laws,  within  three  years 
after  the  date  of  his  original  location  and  any  attempted  re-location 
of  it  by  any  of  the  original  locators  shall  render  such  location  void. 
OIL,  PETROLEUM  AND  NATURAL  GAS  CLAIMS  are  to  be 
located  as  placer,  and  the  locator  acquires  no  rights  as  against  the 
government  until  he  had  actually  made  a  discovery  of  the  mineral; 


MINING  LAW  227 


but  his  location  gives  him  the  right  as  againat  every  other  person  to 
proceed  to  prosecute  work  with  a  view  to  making  a  discovery  of  oil. 
Such  possession  cannot  he  disturbed  by  strangers.  Operations  under 
this  method  of  mining  are  under  the  control  of  the  Department  of 
Petroleum  and  Gas,  of  the  Bureau  of  Mines  of  California,  who  in- 
spect all  wells,  test  them,  report  upon  them  and  may  direct  what 
shall  be  done  about  them  from  time  to  time.  Natural  gas  must  not 
be  allowed  to  escape  into  the  atmosphere;  when  the  well  is  aban- 
doned, it  must  be  capped. 

HYDRAULIC  MINING  may  be  carried  on  whenever  and  wherever 
it  will  not  materially  injure  navigable  streams  or  the  lands  adjacent 
to  them.  Such  mining  is  that  carried  on  by  means  of  water  under 
pressure,  through  a  nozzle,  directed  against  a  natural  bank.  Opera- 
tions under  this  method  are  controlled  by  the  California  Debris 
Commission,  created  by  act  of  Congress  March  1,  1893. 

MINING  CLAIMS  ABANDONED:  All  abandoned  mining  shafts, 
pits  or  other  abandoned  excavations  dangerous  to  passers-by  or  live- 
stock shall  be  securely  covered  or  fenced,  and  kept  so,  by  the  owners 
of  the  land  or  persons  in  charge  of  the  same,  on  which  such  shafts, 
pits  or  other  excavations  are  located.  Any  person  or  persons  fail- 
ing to  comply  with  the  provisions  of  this  section  shall  be  deemed 
guilty  of  a  misdemeanor.  All  abandoned  mining  shafts,  pits  or  other 
excavations  situated  on  unoccupied  public  lands  may  be  securely  cov- 
ered or  fenced  by  order  of  the  board  of  supervisors  of  the  county 
wherein  the  same  is  (are)  situated,  and  it  shall  be  the  duty  of  the 
board  of  supervisors  to  keep  the  same  securely  fenced  or  covered 
when  it  appears  to  them,  by  proof  submitted,  that  the  same  is  (are) 
dangerous  or  unsafe  to  man  or  beast.  The  cost  of  said  covering 
or  fencing  to  be  a  county  charge.  Any  person  or  persons  maliciously 
removing  or  destroying  any  covering  or  fencing  placed  around  or  over 
any  shaft,  pit  or  other  excavation,  as  hereinbefore  provided,  shall  be 
deemed  guilty  of  a  misdemeanor. 

Minerals  contained  in  the  waters  of  any  stream  or  lake  in  this 
state  shall  not  be  extracted  from  said  waters  except  upon  charges 
terms  and  conditions  prescribed  by  law.  No  person,  firm,  corporation 
or  association  shall  hereafter  gain  the  right  to  extract  or  cause  to  be 
extracted  said  minerals  from  said  waters  by  user,  custom,  prescrip- 
tion, appropriation,  littoral  rights,  riparian  rights,  or  in  any  manner 
other  than  by  lease  from  or  express  permission  of  the  state  as  pre- 


228  MONOPOLY 


scribed  by  law;  and  no  such  lease  or  permission  shall  be  grranted  for  a 
longer  period  than  twenty-five  years. 

Every  person  who  shall  feloniously  steal,  take,  and  carry  away, 
or  attempt  to  take,  steal,  and  carry  from  any  mining"  claim,  tunnel, 
sluice,  under-current,  riffle-box,  or  sulphurate  machine,  any  gold 
dust,  amalgam,  or  quick-silver,  the  property  of  another,  shall  be 
deemed  guilty  of  grand  larceny,  and  upon  conviction  of  it,  shall  be 
punished  by  imprisonment  in  the  state  prison  for  any  term  of  not 
less  than  one  year  nor  more  than  fourteen  years. 

Mineral:      See  Mining. 

Miners'  Inch:      See  Waters. 

Minimum  Wage  Law:  In  1913  the  Legislature  enacted  a  bill 
which  brought  into  existence  the  Industrial  Welfare  Commission  of 
the  State  of  California,  and  gave  it  the  authority  to  inquire  into 
and  remedy  the  wages  paid  to  women  and  children,  particularly  with 
regard  to  their  needs  compared  to  the  cost  of  living.  This  com- 
mission has  since  ordered  a  scale  of  wages  which  at  this  writing 
(1919)  is  a  minimum  of  about  $13  per  week  for  experienced  women 
or  children,  and  may  change  from  time  to  time,  as  conditions  of  liv- 
ing change.  Every  employer  v/ho  violates  any  order  of  the  Com- 
mission is  liable  to  fine  or  imprisonment,  or  both. 

Mining  Partnership  Lien.      See  Liens. 

Minors:     See  Children. 

Mistake:     May  be  either  of  law  or  of  fact.      (See  Contracts.) 

MISTAKE  of  fact  is  a  mistake,  not  caused  by  the  neglect  of  a 
legal  duty  on  the  part  of  the  person  making  the  mistake,  and  con- 
sisting in  (a)  an  unconscious  ignorance  or  forgetfulness  of  a  fact, 
past,  or  present,  which  is  material  to  the  contract;  or,  (b)  be- 
lief in  the  present  existence  of  a  thing  material  to  the  contract, 
which  does  not  exist,  or  in  the  past  existence  of  such  a  thing 
which  has  not  existed. 

Mistake  of  law,  is  such  mistake,  only  when  it  arises  in  one  of 
two  ways:  (a)  a  misapprehension  of  the  law  by  all  parties,  all 
supposing  that  they  knew  and  understood  it,  and  all  making  the 
same  mistake;  or,  (b)  a  misapprehension  of  the  law  by  one  of  the 
parties,  of  which  mistake  on  his  part  the  others  are  aware  at  the 
time  of  contracting — but  which  they  do  not  rectify. 

A  mistake  of  foreign  laws  is  a  mistake  of  fact. 

Monopoly:     See  Food  Warehouseman;  Trade  Union.     Every  con- 


MONOPOLY  229 


tract  by  which  one  is  restrained  from  exercising  a  lawful  profes- 
sion, trade  or  business  of  any  kind,  is  to  that  extent  void — except 
that  one  who  sells  the  goodwill  (which  see)  of  a  business  may  agree 
with  the  buyer  to  refrain  from  carrying  on  a  similar  business  within 
a  specified  county,  city,  or  a  part  of  it — as  long  as  the  buyer  (or 
any  person  receiving  title  from  him)  carries  on  a  like  business  in 
that  place.  Upon  and  in  anticipation  of  a  dissolution  of  a  partner- 
ship, the  partners  may  agree  that  none  of  them  will  carry  on  a 
similar  business  within  the  same  city  or  town  where  the  partner- 
ship business  has  been  transacted — or  within  a  specified  part  of 
such  place. 

Section  1.  A  trust  is  a  combination  of  capital,  skill  or  acts  by 
two  or  more  persons,  firms,  partnerships,  corporations  or  associa- 
tions of  persons,  or  of  any  two  or  more  of  them  for  either,  any  or 
all  of  the  following  purposes: 

1.  To  create  or  carry  out  restrictions  in  trade  or  commerce. 

2.  To  limit  or  reduce  the  production,  or  increase  the  price  of 
merchandise  or  of  any  commodity. 

3.  To  prevent  competition  in  manufacturing,  making,  trans- 
portation, sale  or  purchase  of  merchandise,  produce  or  any  commo- 
dity. 

4.  To  fix  at  any  standard  or  figure,  whereby  its  price  to  the 
public  or  consumer  shall  be  in  any  manner  controlled  or  established, 
any  article  or  commodity  of  merchandise,  produce  or  commerce 
intended  for  sale,  barter,  use  or  consumption  in  this  state. 

5.  To  make  or  enter  into  or  execute  or  carry  out  any  contracts, 
obligations  or  agreements  of  any  kind  or  description,  by  which 
they  shall  bind  or  have  bound  themselves  not  to  sell,  dispose  of  or 
transport  any  article  or  any  commodity  or  any  article  of  trade,  use, 
merchandise,  commerce  or  consumption  below  a  common  standard 
figure,  or  fixed  value,  or  by  which  they  shall  agree  in  any  manner 
to  keep  the  price  of  such  article,  commodity  or  transportation  at 
a  fixed  or  graduated  figure,  or  by  which  they  shall  in  any  manner 
establish  or  settle  the  price  of  any  article,  commodity  or  transpor- 
tation between  them  or  themselves  and  others,  so  as  to  directly  or 
indirectly  preclude  a  free  and  unrestricted  competition  among  them- 
selves, or  any  purchasers  or  consumers  in  the  sale  or  transportation 
of  any  such  article  or  commodity,  or  by  which  they  shall  agree  to 
pool,  combine  or  directly  or  indirectly  unite  any  interests  that  they 


230  MONOPOLY 


may  have  connected  with  the  sale  or  transportation  of  any  such 
article  or  commodity,  that  its  price  might  in  any  manner  be  aifected. 
Every  such  trust  as  is  defined  herein  is  declared  to  be  unlawful, 
against  public  policy  and  void,  provided  that  no  agreement,  com- 
bination or  association  shall  be  deemed  to  be  unlawful  or  within 
the  provisions  of  this  act,  the  object  and  business  of  which  are  to 
conduct  its  operations  at  a  reasonable  profit  or  to  market  at  a  rea- 
sonable profit  those  products  which  cannot  otherwise  be  so  marketed, 
provided  further,  that  it  shall  not  be  deemed  to  be  unlawful,  or 
within  the  provisions  of  this  act,  for  persons,  firms,  or  corporations, 
engaged  in  the  business  of  selling  or  manufacturing  commodities 
of  a  similar  or  like  character,  to  employ,  form,  organize  or  own 
any  interest  in  any  association,  firm  or  corporation,  having  a3  its 
object  or  purpose  the  transportation,  marketing  or  delivery  of  such 
commodities. 

Section  2V^.  It  shall  be  lawful  to  enter  into  agreements  or 
form  associations  or  combinations,  the  purpose  and  effect  of  which 
shall  be  to  promote,  encourage  or  increase  competition  in  any  trade 
or  industry,  or  which  are  in  furtherance  of  trade. 

Sec.  7.  Any  violation  of  either  or  all  of  the  provisions  of  this 
act  shall  be  and  is  hereby  declared  a  conspiracy  against  trade,  and 
any  person  who  may  become  engaged  in  any  such  conspiracy  or  take 
part  therein,  or  aid  or  advise  in  its  commission,  or  who  shall  as 
principal,  manager,  director,  agent,  servant  or  employee,  or  in  any 
other  capacity,  knowingly  carry  out  any  of  the  stipulations,  pur- 
poses, prices,  rates,  or  furnish  any  information  to  assist  in  carrying 
out  such  purposes,  or  orders  thereunder  or  in  pursuance  thereof, 
shall  be  punished  by  a  fine  of  not  less  than  fifty  (50)  dollars  nor 
more  than  five  thousand  ($5,000)  dollars,  or  by  both  such  fine  and 
imprisonment.  Each  day's  violation  of  this  provision  shall  consti- 
tute a  separate  offense. 

Sec.  8.  That  any  contract  or  agreement  in  violation  of  the  pro- 
visions of  this  act,  shall  be  absolutely  void  and  shall  not  be  enforcea- 
ble either  in  law  or  in  equity. 

Sec.  9.  That  the  provisions  hereof  shall  be  held  cumulative  of 
each  other  and  of  all  other  laws  in  any  affecting  them  now  in  force 
in  this  state. 

Sec.  10.  It  shall  not  be  lawful  for  any  person,  partnership,  asso- 
ciation or  corporation,  or  any  agent  thereof,  to  issue  or  to  own  trust 


MORTGAGE  231 


certificates,  or  for  any  person,  partnership,  association  or  corpora- 
tion, agent,  officer,  or  employee,  or  the  directors  or  stockholders  of 
any  corporation,  to  enter  into  any  combination,  contract  or  agree- 
ment with  any  person  or  persons,  corporation,  or  corporations,  or  with 
any  stockholder  or  director  thereof,  the  purpose  and  effect  of  which 
combination,  contract  or  agreement  shall  be  to  place  the  management 
or  control  of  such  combination  or  combinations,  or  the  manufac- 
tured product  thereof,  in  the  hands  of  any  trustee  or  trustees  with 
the  intent  to  limit  or  fix  the  price  or  lessen  the  production  and  sale 
of  any  article  of  commerce,  use  or  consumption,  or  to  prevent,  re- 
strict or  diminish  the  manufacture  or  output  of  any  such  article, 
and  any  person,  partnership,  association  or  corporation  that  shall 
enter  into  any  such  combination,  contract  or  agreement  for  the 
purpose  aforesaid  shall  be  deemed  guilty  of  a  misdemeanor,  and 
on  conviction  thereof  shall  be  punished  by  a  fine  not  less  than  fifty 
dollars,  nor  more  than  five  thousand  dollars. 

Sec.  11.  In  addition  to  the  criminal  and  civil  penalties  herein 
provided,  any  person  who  shall  be  injured  in  his  business  or  prop- 
erty by  any  other  person  or  corporation  or  association  or  partner- 
ship, by  reason  of  anything  forbidden  or  declared  to  be  unlawful  by 
this  act,  may  recover  twofold  the  damages  by  him  sustained,  and  the 
costs  of  suit. 

Sec.  13.  Labor  whether  skilled  or  unskilled  is  not  a  commodity 
within  the  meaning  of  this  act. 

Mortgage:  See  Negotiable  Instruments,  113083;  Chattel  Mort- 
gages; Crops;  Real  Estate;  Actions;  Judgment;  Trust  Deed;  Attach- 
ments; Limitations;  Warehouse  Receipts;  Bill  of  Lading.  A  mort- 
gage is  a  contract  by  which  certain  property  mentioned  in  the  in- 
strument is  hypothecated  for  the  payment  of  a  debt,  or  the  per- 
formance of  an  obligation,  without  the  necessity  of  a  change  of 
possession.  The  person  giving  the  mortgage  is  called  the  mortgagor, 
and  the  person  to  whom  it  is  given  is  called  the  mortgagee.  Any 
interest  in  real  property  which  is  capable  of  being  transferred  from 
one  person  to  another  may  be  mortgaged. 

While  perhaps  the  law  does  not  say  that  a  mortgage  must  be 
acknowledged,  or  proved,  any  prudent  man  would  certainly  have 
the  acknowledgment  made  for  his  own  protection.  If  it  is  not  ac- 
knowledged, it  cannot  be  recorded.  Acknowledgment  may  be  made 
before  a  notary  public,  a  justice  of  the  peace  when  the  property  is 


232  MORTGAGE 


situated  in  his  own  township,  a  county  clerk,  or  county  recorder.  An 
assignment  of  a  mortgage  must  be  recorded  in  like  manner  as  the 
mortgage  itself  in  order  to  operate  as  notice  of  the  interest  of  the 
assignee.  Such  assignment  carries  with  it  the  security.  It  is  not 
necessary,  as  between  the  parties,  to  record  a  mortgage,  but  as  the 
object  of  recording  is  to  give  notice  of  its  existence  to  all  subse- 
quent purchasers  of  the  property,  and  to  the  creditors  of  the  mort- 
gagor, the  mortgage  must  be  recorded  to  be  binding  against  them. 
Recording  is  considered  in  law  to  be  notice  to  everyone,  whether 
they  have  actual  notice  or  not;  but  if  it  can  be  shown  that  subse- 
quent purchasers  or  creditors  did  know  of  the  existence  of  th« 
mortgage,  then  it  will  be  binding  against  them  without  being  re- 
corded. A  recorded  mortgage  has  precedence  over  an  unrecorded 
one,  although  it  may  have  been  made  after  the  latter.  Every  mar- 
ried person  who  falsely  represents  himself  or  herself  as  competent 
to  mortgage  any  real  estate,  to  the  validity  of  which  mortgage  the 
assent  or  concurrence  of  his  wife  or  her  husband  is  necessary,  and 
under  such  representations  wilfully  mortgages  the  same,  is  guilty 
of  felony.  Every  person  who,  after  mortgaging  real  property,  or 
after  such  property  shall  have  been  sold  under  foreclosure,  disposes 
of,  removes  or  carries  away  any  house,  barn,  windmill,  water  tank, 
or  other  thing  affixed  to  such  premises,  as  an  improvement  thereon, 
without  the  written  consent  of  the  mortgagee  or  purchaser,  is  guilty 
of  larceny.  No  person  whose  property  is  mortgaged  must  do  any 
act  which  will  in  any  way  impair  its  value  or  lessen  the  mortgagee's 
security,  except  such  things  as  he  may  be  permitted  to  do  by  the 
terms  of  the  mortgage,  such  as  wear  and  tear  by  usage,  etc.  A 
mortgage  does  not  entitle  the  mortgagee  to  possession  of  the  prop- 
erty, unless  expressly  so  stated  in  the  mortgage;  but  the  mortgagor 
may  give  up  possession  to  the  mortgagee  at  any  time  by  agreement, 
without  any  new  consideration.  Any  conditions  agreed  upon  may 
be  inserted  in  the  mortgage,  however,  as  to  possession.  Usually  the 
mortgage  does  provide  that  the  mortgagee  may  take  posssesion 
whenever  he  deems  the  security  unsafe,  or  in  danger  of  deterioration, 
and,  always  in  case  the  mortgagor  fails  to  pay  the  debt,  or  perform 
the  obligation  which  the  mortgage  is  given  to  secure. 

When  a  recorded  mortgage  has  been  satisfied,  it  may  be  discharged 
by  an  entry  to  that  effect  in  the  margin  of  the  record  book,  signed 
by  the  mortgagee,   or  his  personal   representative   or   assignee,   ac- 


MORTGAGE  233 


knowledging  the  satisfaction  of  the  mortgage  in  the  presence  of 
the  recorder,  who  must  certify  the  acknowledgment.  Or,  if  not  dis- 
charged in  the  above  manner,  the  mortgage  must  be  discharged  by 
the  recorder  upon  the  presentation  to  him  of  a  certificate  signed  by 
the  mortgagee,  his  personal  representative  or  assignee,  duly  ac- 
knowledged and  certified,  stating  that  the  mortgage  has  been  paid, 
satisfied,  or  discharged. 

Proceedings  for  the  foreclosure  and  redemption  of  mortgages 
are  very  technical  matters,  and  it  would  be  very  unwise  for  any  one 
to  attempt  to  handle  such  things  himself.  The  services  of  a  com- 
petent attorney  should  be  secured.  Upon  a  sale  of  real  property, 
the  purchaser  is  substituted  to  and  acquires  all  the  right,  title,  in- 
terest, and  claim  of  the  judgment  debtor  thereto  on  the  date  of  the 
levy  of  the  execution  thereon,  where  such  judgment  is  not  a  lien 
upon  such  property;  if  the  judgment  is  a  lien  upon  the  real  property 
the  purchaser  is  substituted  to  and  acquires  all  the  right,  title,  in- 
terest, and  claim  of  the  judgment  debtor  on  or  at  any  time  after 
the  day  such  judgment  became  a  lien  on  such  property.  And  in  case 
property,  real  or  personal,  has  been  attached  in  the  action,  the  pur- 
chaser is  substituted  to  and  acquires  all  the  right,  title,  interest  and 
claim  of  the  judgment  debtor  on  or  at  any  time  after  the  day  the 
attachment  was  levied  upon  such  property. 

A  mortgage  being  simply  a  lien  on  certain  specified  property  as 
security  for  the  payment  of  an  obligation,  it  follows  that  if  th« 
security  fails  the  obligation  still  remains;  therefore,  if  at  the  sale 
of  the  mortgaged  property  it  does  not  realize  enough  to  fully  dis- 
charge the  obligation,  the  deficiency  becomes  a  judgment  against 
the  mortgagor,  or  any  one  who  may  have  assumed  the  mortgage, 
for  satisfaction  of  which  execution  may  be  issued  at  any  time  upon 
any  other  property  which  may  be  found  belonging  to  the  responsible 
party. 

REDEMPTION:  Sales  of  personal  property,  and  of  real  property, 
when  the  estate  therein  is  less  than  a  leasehold  of  two  years'  unex- 
pired term,  are  absolute.  In  all  other  cases  the  property  is  subject 
to  redemption.  The  officer  must  give  to  the  purchaser  a  certificate 
of  sale,  and  file  a  duplicate  thereof  for  record  in  the  office  of  the 
county  recorder  of  the  county,  which  certificate  must  state  the  date 
of  the  judgment  under  which  the  sale  was  made  and  the  names  of 
the  parties  thereto.     And  contain:     1.     A  particular  description  of 


234  NAME 


the  real  property  sold;  2.  The  price  bid  for  each  distinct  lot  or 
parcel;  3.  The  whole  price  paid;  4.  If  the  property  is  subject 
to  redemption,  the  certificate  must  so  declare,  and  if  the  redemption 
can  be  effected  only  in  a  particular  kind  of  money  or  currency,  that 
fact  must  be  stated.  Real  property  may  be  redeemed  from  the  pur- 
chaser at  the  foreclosure  sale  at  any  time  within  twelve  months  after 
such  sale,  by  paying  the  purchase  price,  with  one  per  cent,  per 
month  in  addition,  up  to  the  time  of  redemption,  together  with  any 
assessment  or  taxes  paid  thereon  by  the  purchaser  and  deducting  any 
rent  he  may  have  received  during  the  term.  Any  charges  for  neces- 
sary care  and  maintenance  of  the  property,  expended  by  the  pur- 
chaser, would  also  be  allowed  him,  but  he  would  not  be  allowed  to 
make  improvements  or  add  other  burdens  which  would  make  re- 
demption more  difficult,  although  such  improvements  might  add  to 
the  value  of  the  property.      (See  Chattel  Mortgages.) 

Name:  See  Negotiable  Instruments.  Persons  or  corporations  may 
have  their  names  changed  for  good  reasons,  and  by  application  to 
the  Superior  Court  of  the  County  where  such  person  resides. 

Any  person  in  whom  the  title  of  real  estate  is  vested  who 
shall  afterwards  from  any  cause  have  his  or  her  name  changed 
must  in  any  conveyance  of  real  estate  so  held  set  forth  the  name 
in  which  he  or  she  derives  title  to   such  real  estate. 

FICTITIOUS  NAME:  See  Negotiable  Instruments,  T|3099,  3163, 
3195,  3196,  3211. 

Except  as  otherwise  provided  in  the  next  section  every  person 
transacting  business  in  this  state  under  a  fictitious  name  and  every 
partnership  transacting  business  in  this  state  under  a  fictitious 
name,  or  a  designation  not  showing  the  names  of  the  persons  in- 
terested as  partners  in  such  business,  must  file  with  the  clerk  of  the 
county  in  which  his  or  its  principal  place  of  business  is  situated,  a 
certificate,  stating  the  name  in  full  and  the  place  of  residence  of 
such  person  and  stating  the  names  in  full  of  all  the  members  of 
such  partnership  and  their  places  of  residence.  Such  certificate 
must  be  published  once  a  week  for  four  successive  weeks,  in  a  news- 
paper published  in  the  county,  if  there  be  one,  and  if  there  be  none 
in  such  county,  then  in  a  newspaper  in  an  adjoining  county.  The 
certificate  filed  with  the  clerk  as  provided  in  preceding  section  must 
be  signed  by  the  person  referred  to  in  it-  or  by  the  partners,  as  the 
case  may  be,  and  acknowledged  before  some  officer,  authorized  to 


NEGOTIABLE  INSTRUMENTS 


Z6o 


take  the  acknowledgment  of  conveyances  of  real  property.  Where 
a  business  is  hereafter  commenced  by  a  person  under  a  fictitious 
name  or  a  partnership  is  hereafter  formed,  the  certificate  must  be 
filed  and  the  publication  designated  in  that  section  must  be  made 
within  one  month  after  the  commencement  of  such  business,  or 
after  the  formation  of  the  partnership,  or  within  one  month  from 
the  time  designated  in  the  agreement  of  its  members  for  the  com- 
mencement of  the  partnership.  No  person  doing  business  under  a 
fictitious  name,  or  his  assignee  or  assignees,  nor  any  persons  doing 
business  as  partners  contrary  to  the  provisions  of  this  article,  or 
their  assignee  or  assignees,  shall  maintain  any  action  upon  or  on 
account  of  any  contract  or  contracts  made,  or  transactions  had 
under  such  fictitious  name,  or  in  their  partnership  name,  in  any  court 
of  this  state  until  the  certificate  has  been  filed  and  the  publication  has 
been  made  as  herein  required.  The  following  names  have  been  de- 
termined by  our  Supreme  Court  to  be  fictitious:  Abrams  Bros.; 
P.  H.  Murphy  and  Son;  Nicholson  and  Co.;  J.  D.  Byers  &  Co.  The 
following  are  not:  The  San  Francisco  Call;  Kohler  Steam  Laundry; 
Pendleton  and  Williams. 

Necessaries  of  Life:  See  Actions,  ^ ;  Husband  and  Wife;  Con- 
tracts. Food,  clothing,  house  rent,  expense  of  burial,  medicine, 
medical  attendance,  are  all  necessaries  in  every  case;  but  what  may 
be  considered  "necessary"  will  vary  with  the  rank,  wealth,  position 
and  fortune  of  the  husband — but  it  must  never  go  to  extremes  (such 
as  the  wife  of  a  street  laborer  ordering  silk  underwear,  when  she 
has  never  been  accustomed  to  it). 

Negotiable  Instruments:  See  Checks;  Warehouseman;  Receipts; 
Bill  of  Lading. 

Acceptance:  113213  to  3232,  3242,  3243,  3244,  3262,  3263,  3265C, 
3265D. 

Acceptance  for  Honor:   TI3242  and  following. 

Acceptor:      113143,  3144,  3110. 

Accommodation:      113110,  3145,  3196. 

Accord  and  Satisfaction:   1|3200. 

Agent:     113100,  3101,  3102,  3103,  3117,  3150,  3172. 

Allonge:      113112. 

Alteration  of  Instrument:      113204,  3206. 

Assignment:      1f3206,  3265E. 

Assignment  for  Benefit  of  Creditors:      113182,  3226,  3239. 


236  NEGOTIABLE  INSTRUMENTS 


Assumed  Name:      113099. 

Bank:      113168,  3265E. 

Bankrupt:      113182,   3201. 

Bill  of  Exchange:     113192,  3199,  3207,  3210,  3211,  3233. 

Bills  in  a  Set:     1|3259,  3260,  3261. 

Cancellation:      113204. 

Cashier:     113123. 

Certification:      1I3265C. 

Certificate  of  Deposit:      113090. 

Confession  of  Judgment:      1|3086. 

Check:     P205,  3265  and  following. 

Children:   113103. 

Collateral  Security:     1[3086. 

Consideration:      113105,  3106,  3109,  3136. 

Corporation:   1f3103. 

Date:     113093,  3094. 

Defenses:      113138,  3139. 

Defect:      113136,  3137. 

Delivery:     1[3097,  3111,  3115,  3148. 

Demand:     1[3088,  3152,  3265A. 

Drawee:  113142,  3163,  3196,  3208,  3209,  3211,  3213,  3217,  3218, 
3219,  3222,  3225,  3226,  3228,  3229,  3237. 

Drawer:  1|3110,  3142,  3145,  3151,  3160,  3170,  3211,  3195,  3212, 
3223,  3224,  3228,  3231,  3232,  3233,  3234,  3239,  3244,  3265. 

Dishonor:  113170,  3190,  3192,  3195,  3196,  3214,  3219,  3222,  3229, 
3230,  3233,  3237,  3239,  3246,  3251. 

Discharge:     113170,  3200,  3201  and  following,  3264,  3265D. 

Duress:      113136. 

Fictitious  Names:  113099,  3163,  3195,  3196,  3211,  3229. 

Foreign  Bill  of  Exchange:  1[3207,  3210,  3211,  3233. 

Forgery,   113104. 

Fraud:      113136. 

Grace,  Days  of:      113166,   3217. 

Holder  for  Value:     113107,  3108,  3132  and  following. 

Holder  in  Due  Course:      113133,  3134. 

Holidays:     113166,  3227,  3266c. 

Indorsement:  113103,  3105,  3110,  3111,  3112  to  3131  inclusive, 
3144,  3145,  3146,  3147,  3148,  3149,  3151,  3161,  3170,  3196,  3201, 
3205,  3212,  3225,  3231,  3232,  3233,  3239,  3261,  3265,  3265d. 


NEGOTIABLE  INSTRUMENTS  237 


Infirmity:     113137,  3136. 

Inland  Bill  of  Exchange,  113210,  3211. 

Inaolvent:      113182,  3139. 

Interest,  1[3083,  3098. 

Judgment:      li3086. 

Mail:  1[3186,  3187,  3188. 

Maker:  113141,  3142,  3144,  3145,  3110. 

Maturity:      113166. 

Mortgages:      113083. 

Name:      1^3099. 

Notary  Public:      113253,  3254,  3258. 

Negotiation:      1|3111. 

Negotiability:  1|3082,  3083,  3111,  3112,  3128,  3131,  3133,  3134, 
3136. 

Note:     113083,  3205,  3265,  3170. 

Notice:  113137,  3175,  3176,  3177,  3178,  3179,  3180,  3182,  3183, 
3184,  3185,  3186.  3187,  3188,  3189,  3190,  3191,  3192,  3193,  3194, 
3195,  3196,  3197,  3198. 

Partner:     3158,  3159,  3180,  3181,  3209. 

Payee:      1(3142,  3143,  3149. 

Payment:      113169,  3264,  3153,  3154, 

Payment  of  Honor:      1(3252  and  following. 

Presentment:  113151,  3152,  3292,  3214,  3224,  3225,  3226,  3229, 
3232,  3234,  3237,  3249,  3250,  3265b. 

Prima  Facie:     113092,  3095,  3105,  3123,  3140. 

Principle  Agent:      113100,  3101,  3102,  3103. 

Procuration:      113102. 

Promissory  Note:     1[3083,  3205,  3211,  3265,  3170. 

Protest:     1[3192,  3199,  3233  and  following,  3248,  3251. 

Reasonable  Time:      l[3266b. 

Referee,  in  Case  of  Need:      1[3212,  3213,  3248,  3250. 

Saturday:     113166,  3227. 

Sight:     113247. 

Signature:  1|3082,  3095,  3099,  3100,  3101,  3102,  3103,  3112, 
3124,  3136,  3145,  3204. 

Sunday:      113166,  3266c. 

Subrogation:     U3256. 

Supra  Protest:  113242,  3245,  3252,  3253,  3257. 

Time:     113167. 


238  NEGOTIABLE  INSTRUMENTS 


Tender:      3131. 
Title:      ^3136. 

3082.  An  instrument  to  be  negotiable  must  conform  to  the  fol- 
lowing requirements:  (1)  It  must  be  in  writing  and  signed  by  the 
maker  or  drawer;  (2)  Must  contain  an  unconditional  promise  or 
order  to  pay  a  sum  certain  in  money;  (3)  Must  be  payable  to  order 
or  to  bearer;  and  (5)  Where  the  instrument  is  addressed  to  a 
drawee,  he  must  be  named  or  otherwise  indicated  therein  with  rea- 
sonable certainty. 

Negotiability  is  that  quality  in  bills,  notes  or  checks  which  renders 
them  transferable  from  one  person  to  another  by  indorsement; 
which  enables  them  to  pass  from  hand  to  hand  like  money,  so  as  to 
give  the  holder  in  due  course  the  right  to  hold  the  instrument  and 
collect  the  sum  payable  for  himself,  free  from  defense. 

The  instrument  must  be  in  writing.  "Writing"  includes  handwrit- 
ing, typewriting  and  printing.  It  may  be  written  with  a  pencil  or 
with  ink,  but  the  permanence  and  better  security  of  ink  make  it 
preferable.  It  might  be  possible  that  a  drawee  v/ould  be  upheld  in 
refusing  to  pay  an  instrument  written  or  indorsed  in  pencil  because 
of  the  facility  with  which  it  might  be  altered. 

The  proper  place  for  the  signature  is  at  the  bottom  or  end  of  the 
instrument.  If  placed  elsewhere,  in  such  position  as  to  create  a 
doubt  as  to  whether  the  signer  intended  to  sign  as  maker,  acceptor  or 
indorser,  he  is  to  be  deemed  an  indorser,  which  makes  a  lot  of  dif- 
ference. The  signature  may  be  written  in  ink  or  pencil,  or  it  may 
be  typewritten  or  even  printed,  but  in  the  latter  cases  it  cannot  prove 
itself,  and  must  be  shown  to  have  been  adopted  by  the  party  as  his 
signature.  Bonds  and  other  evidences  of  indebtedness  signed  by  a 
printed  facsimile  of  the  maker's  autograph,  where  adopted  by  the 
maker  for  that  purpose,  are  properly  signatured. 

In  case  of  a  bill  or  check  there  must  be  a  positive  order  to  pay 
the  same — a  command,  not  a  request.  If  a  note,  a  definite  promise 
to  pay  in  any  event,  without  any  condition  or  stipulation  which  would 
render  the  payment  uncertain  or  dependent  upon  some  contingency. 
Certain  statements  and  instructions,  however,  are  allowable,  as  not 
being  conditional.  See  section  3084.)  As  to  the  language  of  the 
promise,  other  words  might  do  but  "I  promise  to  pay"  is  better  than 
phrases  of  doubtful  force  as  sometimes  used;  such  as  "I  agree  to 


NEGOTIABLE  INSTRUMENTS  239 


pay,"  etc.,  being  direct,  positive  and  specific.  But  if  from  the  words 
of  the  instrument  may  be  collected  an  unconditional  promise  to  pay 
it,  it  may  be  regarded  as  an  unconditional  promissory  note. 

The  amount  to  be  paid  must  be  definitely  stated,  and  must  be  pay- 
able in  money  only.  The  kind  of  money  may  be  stipulated  or  not. 
"Payable  in  New  York  funds  or  their  equivalent"  held  not  to  be 
money.  Again,  "Payable  in  current  funds"  has  been.  The  best 
definition  of  money  is  probably  those  species  of  coins  and  notes 
designated  by  the  government  as  legal  tender  for  the  payment  of 
debts,  both  public  and  private.      See  also  section   3083. 

The  time  when  the  instrument  becomes  due  and  payable  must  be 
definitely  ascertainable  from  its  language.  (This  is  further  ex- 
plained under  section  3085.) 

Must  be  payable  to  order  or  to  bearer.  (See  sections  3088,  3089, 
3090.) 

The  name  of  the  drawee  should  be  written  in  the  instrument  in 
order  to  ascertain  who  is  to  be  bound.  But  it  will  be  sufficient  if  the 
name  of  the  drawee  is  indicated  with  reasonable  certainty.  Thus, 
an  order  addressed  to  the  "Agent  of  the  Mutual  Insurance  Corpora- 
tion" at  Fresno  would  probably  be  sufficient  identification  in  case 
the  maker  was  not  aware  of  the  name  of  the  said  agent. 

3083.  The  sum  payable  is  a  sum  certain  within  the  meaning  of 
this  act,  although  it  is  to  be  paid — (1)  With  interest;  or  (2)  By 
stated  installments;  or  (3)  By  stated  installments,  with  a  provision 
that  upon  default  in  payment  of  any  installment  or  of  interest  the 
whole  shall  become  due;  or  (4)  With  exchange,  whether  at  a  fixed 
rate  or  at  the  current  rate;  or  (.5)  With  costs  of  collection  or  an 
attorney's  fee,  in  case  payment  shall  not  be  made  at  maturity. 

The  further  promise  to  pay  interest  or  exchange  does  not  detract 
from  the  element  of  certainty,  inasmuch  as  the  amount  to  be  so 
added  is  capable  of  definite  ascertainment,  and  is  therefore  certain. 

There  are  many  forms  of  instruments,  which  are  all  right  so  long 
as  they  observe  the  legal  requirements,  and  the  language  employed 
will  make  no  difference.  The  forms  which  follow  in  this  work  are 
of  accepted  phraseology,  in  accordance  with  the  terms  of  the  statute. 
(It  should  be  understood  that  in  the  following  sample  forms,  the 
names,  dates  and  amounts  are  fictitious,  and,  when  using  them, 
the  names,  dates  and  amounts  should  be  inserted  in  accordance 
with  each  particular  case.) 


240  NEGOTIABLE  INSTRUMENTS- 


(PROMISSORY  NOTE  WITH  INTEREST.) 
$100.00  Sacramento,  July_4,  1950. 

For  value  received,  six  months  after  date  I  promise  to 
pay  to  Henry  Harrison,  or  order,  one  hundred  dollars,  with 
interest  at  seven  per  cent,  per  annum. 

HIRAM  JACKSON. 

Interest   may   be   compounded,   and   a   clause   so   compounding   it 
may  be  added  to  any  negotiable  instrument  calling  for  interest. 

(PROMISSORY    NOTE    WITH    COMPOUND    INTEREST 

AND  ATTORNEY'S  FEES.) 
$100.00  Sacramento.  July  4,  1950. 

For  value  received,  one  year  after  date  I  promise  to 
pay  Theodore  Thompson,  or  order,  one  hundred  dollars, 
with  interest  at  the  rate  of  seven  per  cent,  per  annum  from 
date  until  paid,  interest  payable  monthly,  and  if  not  so 
paid  to  be  compounded  monthly  and  bear  the  same  rate  of 
interest  as  the  principal;  and  should  the  interest  not  be 
paid  monthly  then  the  whole  sum  of  principal  and  interest 
shall  become  immediately  due  and  payable  at  the  option  of 
the  holder  of  this  note.  Should  suit  be  commenced  to  en- 
force the  payment  of  this  note,  I  agree  to  pay  an  addi- 
tional reasonable  sum  as  attorney's  fees  and  costs  of  col- 
lection in  such  suit. 

HIRAM  JACKSON. 

Installment  notes,  such  as  are  mentioned  in  paragraphs  (2)  and 
(3)  are  quite  common,  and  have  many  times  been  adjudicated  as 
not  affecting  negotiability. 

(PROMISSORY  NOTE  PAYABLE  IN  INSTALLMENTS.) 
$600.00  Sacramento,  July  4,  1950. 

In  installments  and  at  the  times  hereinafter  stated,  after 
date,  for  value  received,  I  promise  to  pay  to  James  H. 
Woodward,  or  order,  at  1764  Main  street.  Sacramento, 
Cal.,  the  principal  sum  of  six  hundred  dollars.  Of  said 
principal  sum  I  promise  to  pay  the  sum  of  one  hundred  dol- 
lars on  the  first  day  of  August,  1950,  and  one  hundred 
dollars  on  the  first  day  of  each  succeeding  month  thereafter 
until  said  principal  sum  has  been  fully  paid,  with  interest 
from  July  4,  1950,  until  paid,  at  the  rate  of  seven  per  cent. 


NEGOTIABLE  INSTRUMENTS  241 


per  annum,  payable  monthly  on  deferred  payments.  Should 
the  interest  not  be  so  paid  it  shall  become  a  part  of  the 
principal  and  thereafter  bear  like  interest  as  the  principal. 
Should  default  be  made  in  the  payment  of  any  installment 
of  interest  when  due,  or  in  any  installment  of  the  princi- 
pal when  due,  then  the  whole  sum  of  principal  and  interest 
shall  become  immediately  due  and  payable  at  the  option 
of  the  holder  of  this  note. 

HIRAM  JACKSON. 

It  is  not  necessary  to  describe  in  the  note  the  property  mortgaged, 
but  the  dates  and  amounts  and  other  items  of  the  two  instruments 
should  correspond  exactly,  and  the  mortgage  should  refer  to  the  note 
for  which  it  is  given  as  security,  for  purposes  of  identification.  A 
mortgage  note  can  not  be  negotiated  apart  from  the  mortgage  of 
which  it  forms  a  part. 

A  stipulation  In  a  mortgage  requiring  the  mortgagor  to  pay,  in 
addition  to  the  principal  debt  and  interest,  such  sums  as  the  mort- 
gagee may  be  required  to  incur  for  insurance,  taxes,  assessments 
and  charges  on  the  land,  etc.,  is  not  imported  into  the  note  secured 
by  the  mortgage  so  as  to  render  it  non-negotiable. 

(PROMISSORY  NOTE  SECURED  BY  MORTGAGE  UPON 

REAL  OR  PERSONAL  PROPERTY.) 
$3000.00  Sacramento,  July  4,  1950. 

Three  years  after  date,  for  value  received,  I  promise 
to  pay  to  Philip  Baker,  or  order,  at  the  Tenth  National 
Bank.  Los  Angeles,  Cal.,  the  sum  of  three  thousand  dollars, 
with  interest  from  July  4,  1950,  until  paid,  at  the  rate  of 
seven  per  cent,  per  annum,  payable  yearly;  should  the 
interest  not  be  so  paid,  it  shall  become  part  of  th-e  princi- 
pal, and  thereafter  bear  like  interest  as  the  principal. 
Should  default  be  made  in  the  payment  of  any  installment 
of  interest  when  due,  then  the  whole  sum  of  principal  and 
interest  «hall  become  immediately  due  and  payable  at  the 
option  of  the  holder  of  this  note.  Principal  and  interest 
payable  in  gold  coin  of  the  United  States.  This'  note  is 
secured  by  a  mortgage  upon  real  (or  personal)  property. 

HIRAM  JACKSON. 


242  NEGOTIABLE  INSTRUMENTS 


The  stipulation  providing  for  attorney's  fees  and  costs  of  col- 
lection if  the  instrument  be  not  paid  at  maturity  does  not  affect  its 
negotiability.  Such  stipulations  can  never  go  into  effect  if  the 
terms  of  payment  are  complied  with.  They  are  only  enforceable 
after  dishonor,  and  do  not  affect  the  certainty  of  the  amount  to  be 
paid  if  paid  according  to  its  terms;  being  in  fact  simply  incidental 
to  the  main  engagement,  intended  to  insure  its  performance  or  to 
compensate  for  trouble  and  expense  entailed  by  its  breach.  The 
attorney's  fee  is  due  if  the  unpaid  note  is  placed  in  his  hands  for 
collection,  although  no  suit  be  brought.  Where  the  amount  is  left 
blank  it  is  tantamount  to  a  promise  to  pay  a  reasonable  amount  as 
attorney's  fee. 

(PROMISSORY  NOTE  WITH  ATTORNEY'S  FEES  AND 

COSTS  OF  COLLECTION.) 
1100.00  Sacramento,  July  4,  1950. 

For  value  received,  six  months  after  date  I  promise  to 
pay  to  Henry  Harrison,  or  order,  one  hundred  dollars,  with 
interest  at  seven  per  cent,  per  annum,  together  with  an  ad- 
ditional sum  of  five  per  cent,  of  the  principal  as  attorney's 
fees  and  costs  of  collection  should  it  be  necessary  to  bring 
an  action  to  enforce  payment  hereof. 

HIRAM  JACKSON. 

3084.  An  unqualified  order  or  promise  to  pay  is  unconditional 
within  the  meaning  of  this  act,  though  coupled  with — (1)  An  indi- 
cation of  a  particular  fund  out  of  which  reimbursement  is  to  be 
made,  or  a  particular  account  to  be  debited  with  the  amount;  or  (2) 
A  statement  of  the  transaction  which  gives  rise  to  the  instrument. 
But  an  order  or  promise  to  pay  out  of  a  particular  fund  is  not  uncon- 
ditional. 

Where  the  instrument  is  otherwise  in  correct  form,  and  payable  at 
all  events,  it  may  indicate  that  it  is  to  be  paid  out  of  a  particular 
fund;  but  if  to  be  paid  only  out  of  a  particular  fund  it  is  condi- 
tioned and  therefore  nonnegotiable.  The  following  are  negotiable, 
because  there  is  a  positive  order  to  pay  a  definite  sum,  although  to 
be  charged  up  to  a  particular  fund:  "Pay  Dee,  or  order,  One  Hun- 
dred dollars,  and  take  the  same  out  of  my  share  of  the  grain  when 
sold."  "Pay  Dee,  or  order.  One  Hundred  Dollars  on  account  of  the 
money  advanced  by  me  for  the   Golden   State  Building  Company." 


NEGOTIABLE  INSTRUMENTS  243^ 


The  following  are  not  negotiable,  because  payable  out  of  a  par- 
ticular fund,  which  fund  may  never  exist,  or  may  be  inadequate: 
"Pay  Dee,  or  order,  one  hundred  dollars  out  of  the  money  in  your 
hands  belonging  to  the  Golden  State  Building  Company."  "Pay 
Dee,  or  order,  one  hundred  dollars  out  of  the  money  arising  from  the 
sale  of  my  land."  Those  forms  of  contract  notes  usually  given  in 
payment  of  goods  and  chattels  are  held  not  to  be  conditioned  as 
affecting  their  negotiability.  Thus,  a  provision  in  a  note  that  is  given 
in  payment  for  a  piano,  "which  piano  shall  be  and  remain  the  prop- 
erty of  the  seller  until  the  amount  secured  hereby  is  paid,"  is  held 
merely  to  be  a  statement  of  the  transaction  which  gives  rise  to  the  in- 
strument, and  is  valid  and  permissible. 

(PROMISSORY      NOTE,      CONTRACT      FORM,      WITH 
STATEMENT  OF  TRANSACTION  WHICH  GIVES  RISE 

TO  THE  INSTRUMENT.) 
$300.00  Sacramento,  July  4,  1950. 

Ninety  days  after  date,  :for  value  received,  I  promise  to 
pay  to  the  order  of  C.  E.  Capitol,  three  hundred  dollars, 
payable  in  gold  coin  of  the  United  States,  with  interest 
thereon  in  like  coin,  from  date  until  paid,  at  the  rate  of  ten 
per  cent,  per  annum.  And  in  case  a  suit  or  action  is  in- 
stituted to  collect  the  money  above  mentioned,  or  any  por- 
tion thereof  I  promise  to  pay  ten  per  cent,  on  the  sum  first 
aforesaid,  additional  to  said  amount,  as  attorney's  fees  and 
costs  of  collection  in  such  suit  or  action.  The  above  note 
is  given  upon  and  for  the  consideration  that  the  said  C.  E. 
Capitol  has  agreed  and  promises  that  upon  the  payment  of 
said  note,  principal  and  interest,  at  maturity  (time  being 
the  essence  of  this  contract)  he  will  sell  and  transfer  to 
the  undersigned,  at  the  price  of  said  principal  and  interest, 
the  Bradford  Piano  which  the  said  C.  E.  Capitol  has  this 
day  entrusted  to  the  care  of  the  undersigned.  It  is  admit- 
ted and  agreed  that  the  said  piano,  so  entrusted,  is  the 
property  of  said  C.  E.  Capitol,  and  the  legal  title  thereof 
is  in  said  C.  E.  Capitol,  and  shall  remain  in  him  until  he 
shall  make  the  aforesaid  sale  and  transfer,  after  the  prin- 
cipal and  interest  aforesaid  shall  be  paid. 

HIRAM  JACKSON. 


244  NEGOTIABLE  INSTRUxMENTS 


3085.  An  instrument  is  payable  at  a  determinable  future  time, 
within  the  raeaninp:  of  this  act,  which  is  expressed  to  be  payable — 

(1)  At  a  fixed  period  after  date  or  sight;  or  (2)  On  or  before  a 
fixed  or  determinable  future  time  specified  in  it;  or  (3)  On  or  at 
a  fixed  period  after  the  occurrence  of  a  specified  event,  which  is 
certain  to  happen,  though  the  time  of  happening  be  uncertain.  An 
instrument  payable  upon  a  contingency  is  not  negotiable  and  the 
happening  of  the  event  does  not  cure  the  defect.  A  note  payable 
"on  or  before"  a  stated  date  is  nonnegotiable.  A  note  may  be  made 
payable  upon  the  happening  of  an  event  if  the  event  is  sure  to  hap- 
pen, sooner  or  later.  Thus,  a  note  payable  upon  the  death  of  the 
maker  is  negotiable  because  the  event  is  sure  to  happen.  A  prom- 
ise to  pay  by  a  minor  when  he  becomes  twenty-one  years  of  age  is 
not  negotiable,  because  payable  on  a  contingency  Avhich  may  never 
happen;  he  might  die  before  reaching  that  age.  A  note  payable 
"as  soon  as  this  year's  fruit  crop  is  harvested"  is  held  nonnegotiable 
because  of  a  contingency  which  might  never  happen  because  of  pos- 
sible destruction  of  the  crop  before  harvest  time.  Even  the  har- 
vesting without  mishap  would  not  cure  the  defect. 

3086.  An  instrument  which  contains  an  order  or  promise  to  do 
any  act  in  addition  to  the  payment  of  money  is  not  negotiable.  But 
the  negotiable  character  of  a  loan  instrument  otherwise  negotiable  is 
not  affected  by  a  provision  which — (1)  Authorizes  the  sale  of  col- 
lateral securities  in  case  the  instrument  be  not  paid  at  maturity;  or 

(2)  Authorizes  a  confession  of  judgment  if  the  instrument  be  not 
paid  at  maturity;  or  (3)  Waives  the  benefit  of  any  law  intended  for 
the  advantage  or  protection  of  the  obligor;  or  (4)  Gives  the  holder 
an  election  to  require  something  to  be  done  in  lieu  of  payment  of 
money.  But  nothing  in  this  section  shall  validate  any  provision  or 
stipulation  otherwise  illegal. 

It  is  an  indispensable  requisite  of  a  negotiable  instrument  that  it 
be  payable  in  money  only.  If  payable  in  work,  or  in  cotton,  or  in 
gold  ore,  or  in  Liberty  bonds,  or  whatsoever,  in  addition  to  or  instead 
of  money  which  is  legal  tender,  it  loses  its  character  as  negotiable 
paper  and  becomes  merely  a  special  contract.  The  instrument  may 
provide  for  collateral  security  and  the  sale  of  it;  for  confession  of 
judgment  by  the  payee  or  holder  for  the  maker;  and  may  waive  the 
law  of  exemptions,  homestead  or  other  protective  statutes.  Para- 
graph  (4)  however,  seems  to  validate  a  provision  in  the  instrument 


NEGOTIABLE  INSTRUMENTS  245 


giving  the  holder  the  option  of  requiring  something  else  to  be  done 
instead  of  the  payment  of  money  (not  in  addition  to  it)  ;  but  such 
provision  must  in  no  manner  detract  from  the  absolute  necessity 
for  payment  if  the  holder  so  elects. 

(PROMISSORY  NOTE  WITH  COLLATERAL  SECURITY.) 
$10,000  Sacramento,  July  4,  1950. 

Thirty  days  after  date,  for  value  received  I  promise  to 
pay  to  Messrs.  Dodson  &  Company  or  order,  the  sum  of  ten 
thousand  dollars  with  interest  at  the  rate  of  seven  per  cent, 
per  annum  from  date  until  paid,  interest  payable  monthly, 
and  if  not  so  paid  to  be  compounded  monthly  and  bear  the 
same  rate  of  interest  as  the  principal;  and  should  the  inter- 
est not  be  paid  monthly,  then  the  whole  sum  of  principal 
and  interest  shall  become  immediately  due  and  payable  at 
the  option  of  the  holder  of  this  Note.  Should  suit  be  com- 
menced to  enforce  the  payment  of  this  Note,  I  agree  to  pay 
an  additional  reasonable  sum  as  attorney's  fees  and  costs  of 
collection  in  such  suit.  Principal  and  interest  payable  in 
gold  coin  of  the  United  States. 

HIRAM  JACKSON. 

As  collateral  security  for  the  payment  of  the  above  note 
and  the  interest  as  stated  therein  and  expenses  which  may 
accrue  thereon  I  have  deposited  with  Messrs.  Dodson  & 
Company  the  following  personal  property  of  which  I  am 
sole  owner,  to  wit:  one  thousand  shares  of  The  Water 
Development  Company,  as  evidenced  by  certificate  thereof 
numbered  46  to  90  inclusive  par  value  $100.00  per  share. 
And  should  the  said  note  or  any  part  thereof,  or  the 
interest  that  may  grow  thereon,  remain  due  and  un- 
paid at  maturity  according  to  the  tenor  of  said  note,  I 
hereby  irrevocably  authorize  and  empower  said  Dodson  & 
Company  or  their  heirs,  executors,  administrators  or  as- 
signs, to  sell  and  dispose  of  the  above  mentioned  personal 
property  or  any  part  thereof,  at  public  or  private  sale, 
without  any  previous  notice  to  me  of  any  such  sale,  and 
from  the  proceeds  arising  therefrom  to  pay  the  principal 
and  interest  and  all  charges  that  shall  then  be  due,  and  the 
costs  of  sale,  together  with  a  reasonable  attorney's  fee,  and 


246  NEGOTIABLE  INSTRUMENTS 


the  balance,  if  any,  to  pay  over  to  me  or  my  representa- 
tives upon  demand.  In  case  of  deterioration  of  any  of  the 
above  securities,  or  fall  in  the  market  value  of  the  same  I 
hereby  promise  and  agree  on  demand  to  reduce  the  amount 
of  said  debt,  or  to  increase  the  security  in  proportion  to 
such  deterioration  or  decrease  of  value,  in  default  of  which 
this  note  is  to  be  considered  due  under  the  above  stipula- 
tion. On  the  payment  of  the  above  note  and  interest  ac- 
cording to  the  terms  of  the  former,  and  all  charges,  this 
agreement  is  to  be  void,  and  the  above  named  securities  to 
be  returned  to  me.  Presentment,  protest,  and  notice  of 
protest,  are  hereby  w^aived. 

HIRAM  JACKSON. 

Dated  July  4,  1950. 

The  foUovring  is  the  form  of  judgment  note  generally  in  use 
where  such  note  is  permissible.  It  is  a  very  severe  instrument,  and 
is  prohibited  in  New  York  and  some  other  states,  although  a  clause 
confessing  judgment  in  no  wise  destroys  negotiability.  Whether 
such  form  of  note  would  be  legal  in  this  state  there  is  as  yet  no 
authority. 

(PROMISSORY   NOTE   WITH  CONFESSION  OF  JUDG- 
MENT.) 
$100.00  Sacramento,  July  4,  1950. 

One  year  after  date,  I  promise  to  pay  to  the  order  of 
John  Jones  the  sum  of  one  hundred  dollars  with  interest  at 
six  per  cent.,  and  I  hereby  authorize  any  attorney  at  law 
in  the  United  States  to  appear  before  any  Justice  of  the 
Peace,  or  in  any  court  of  record,  after  this  note  is  due,  and 
waive  the  service  of  summons  and  confess  judgment 
against  me  in  favor  of  the  holder  of  this  note  for  the 
amount  which  shall  then  be  due  and  unpaid  thereon,  to- 
gether with  interest,  attorney's  fees  and  costs. 

HIRAM  JACKSON. 

(PROMISSORY  NOTE  WITH  WAIVER  OF  BENEFITS.) 
$100.00  Sacramento.  July  4,  1950. 

For  value  received,  six  months  after  date  I  promise  to 
pay  to  Henry  Harrison,  or  order,  one  hundred  dollars, 
with  interest  at  seven  per  cent,   per  annum,  hereby  also 


NEGOTIABLE  INSTRUMENTS  247 


agreeing  to  waive  the  benefits  of  the  exemption  and  home- 
stead laws  of  this  state,  presentment,  protest,  and  notice  of 
dishonor.  HIRAM  JACKSON. 

3087.  The  validity  and  negotiable  character  of  an  instrument 
are  not  affected  by  the  fact  that — (1)  It  is  not  dated;  or  (2)  Does 
not  specify  the  value  given  or  that  any  value  has  been  given  there- 
for; or  (3)  Does  not  specify  the  place  where  it  is  drawn  or  the 
place  where  it  is  payable;  or  (4)  Bears  a  seal;  or  (5)  Designates 
a  particular  kind  of  current  money  in  which  payment  is  to  be  made. 
But  nothing  in  this  section  shall  alter  or  repeal  any  statute  requir- 
ing in  certain  cases  the  nature  of  the  consideration  to  be  stated  in 
the  instrument. 

(PROMISSORY     NOTE     PAYABLE     IN    PARTICULAR 

KIND  OF  MONEY.) 
$100.00  Sacramento,  July  4,  1950. 

For  value  received,  six  months  after  date  I  promise  to 
pay  Henry  Harrison,  or  order,  one  hundred  dollars,  with 
interest  payable  in  gold  coin  of  the  United  States. 

HIRAM   JACKSON. 

3088.  An  instrument  is  payable  on  demand  (1)  Where  it  is  ex- 
pressed to  be  payable  on  demand,  or  at  sight,  or  on  presentation ;  or 
(2)  In  which  no  time  for  payment  is  expressed.  Where  an  instru- 
ment is  issued,  accepted,  or  indorsed  when  overdue,  it  is,  as  regards 
the  person  so  issuing,  accepting,  or  indorsing  it,  payable  on  demand. 
A  note  payable  on  demand  or  sight  after  date  is  a  demand  note- 
Presentment  need  not  be  made  the  day  after  date  but  within  a 
reasonable  time  in  order  to  hold  an  endorser. 

(PROMISSORY  NOTE  PAYABLE  ON  DEMAND.) 

$100.00  Sacramento,  July  4,  1950. 

For  value  received,  on  demand  after  date  I  promise  to 
pay  to  Henry  Harrison,  or  order,  one  hundred  dollars,  with 
interest  at  seven  per  cent,  per  annum. 

HIRAM   JACKSON. 

3089.  The  instrument  is  payable  to  order  where  it  is  drawn  paya- 
ble to  the  order  of  a  specified  person  or  to  him  or  to  his  order.  It 
may  be  drawn  payable  to  the  order  of — (1)  A  payee  who  is  not 
maker,  drawer,  or  drawee;  or  (2)  The  drawer  or  maker;  or  (3)  The 
drawee;  or    (4)    Two  or  more  payees  jointly;  or    (5)   One  or  some 


>48  NEGOTIABLE  INSTRUMENTS 


of  several  payees;  or  (6)  The  holder  of  an  office  for  the  time  being. 
Where  the  instrument  is  payable  to  order  the  payee  must  be  named 
or  otherwise  indicated  in  it  with  reasonable  certainty. 

3090.  The  instrument  is  payable  to  bearer — (1)  When  it  is  ex- 
pressed to  be  so  payable;  or  (2)  When  it  is  payable  to  a  person 
named  in  it  or  bearer;  or  (3)  When  it  is  payable  to  the  order  of  a 
fictitious  or  non-existinp:  person,  and  such  fact  was  known  to  the 
person  making  it  so  payable;  or  (4)  When  the  name  of  the  payee 
does  not  purport  to  be  the  name  of  any  person;  or  (5)  When  the 
only  or  last  indorsement  is  an  indorsement  in  blank. 

The  words  "bearer,"  "or  order,"  "or  bearer"  are  words  of  nego- 
tiability without  which  or  other  equivalent  words  the  instrument 
will  not  possess  that  quality.  Thus,  an  instrument  payable  to  John 
Bright  unless  followed  by  "or  order"  "or  bearer"  is  not  negotiable. 
Certificate  of  deposit  payable  to  "John  Doe  or  his  assigns"  is  not 
negotiable.  Note  endorsed  in  blank  by  payee  is  payable  to  bearer, 
regardless  of  subsequent  endorsements.  Also,  is  payable  to  bearer 
where  last  endorsement  is  in  blank,  regardless  of  previous  endorse- 
ments. 

3091.  The  instrument  need  not  follow  the  language  of  this  act, 
but  any  terms  are  sufficient  which  clearly  indicate  an  intention  to 
conform  to  the  requirements  hereof. 

3092.  Where  the  instrument  or  an  acceptance  of  any  indorsement 
on  it  is  dated,  such  date  is  deemed  prima  facie  to  be  the  true  date 
of  the  making,  drawing,  acceptance,  or  indorsement  as  the  case 
may  be. 

3093.  The  instrument  is  not  invalid  for  the  reason  only  that  it 
is  antedated  or  postdated,  provided  this  is  not  done  for  an  illegal 
or  fraudulent  purpose.  The  person  to  whom  an  instrument  so  dated 
is  delivered  acquires  the  title  to  it  as  of  the  date  of  delivery. 

The  postdating  of  an  instrument  has  no  eflfect  on  its  negotiability. 
It  may  be  negotiated  and  transferred  with  like  effect  as  other  instru- 
ments, either  before  or  after  it  becomes  due,  except  that  payment 
cannot  be  demanded  until  the  day  of  its  date. 

3094.  W^here  an  instrument  expressed  to  be  payable  at  a  fixed 
period  after  date  is  issued  undated,  or  where  the  acceptance  of  an 
instrument  payable  at  a  fixed  period  after  sight  is  undated,  any 
holder  may  insert  in  it  the  true  date  of  issue  or  acceptance,  and 
the   instrument  shall   be   payable   accordingly.      The   insertion   of   a 


NEGOTIABLE  INSTRUINIENTS  249 


wrong  date  does  not  avoid  the  instrument  in  the  hands  of  a  sub- 
sequent holder  in  due  course;  but  as  to  him,  the  date  so  inserted  is 
to  be  regarded  as  the  true  date. 

See  Alteration  of  Instruments. 

3095.  Where  the  instrument  is  wanting  in  any  material  particn- 
lar,  the  person  in  possession  of  it  has  a  prima  facie  authority  to 
complete  it  by  filling  up  the  blanks  in  it.  And  a  signature  on  a 
blank  paper  delivered  by  the  person  making  the  signature  in  order 
that  the  paper  may  be  converted  into  a  negotiable  instrument  oper- 
ates as  a  prima  facie  authority  to  fill  it  up  as  such  for  any  amount. 
In  order,  however,  that  any  such  instrument  when  completed  may 
be  enforced  against  any  person  who  became  a  party  to  it  before 
its  completion,  it  must  be  filled  up  stricty  in  accordance  with  the 
authority  given  and  within  a  reasonable  time.  But  if  any  such 
instrument,  after  completion,  is  negotiated  to  a  holder  in  due  course 
it  is  valid  and  effectual  for  all  purposes  in  his  hands,  and  he  may 
enforce  it  as  if  it  had  been  filled  up  strictly  in  accordance  with  the 
authority  given  and  within  a  reasonable  time. 

3096.  Where  an  incomplete  instrument  has  not  been  delivered  it 
will  not,  if  completed  and  negotiated,  without  authority,  be  a  valid 
contract  in  the  hands  of  any  holder,  as  against  any  person  whose 
signature  was  placed  on  it  before  delivery. 

3097.  Every  contract  on  a  negotiable  instrument  is  incomplete 
and  revocable  until  delivery  of  the  instrument  for  the  purpose  of 
giving  effect  to  it.  As  between  immediate  parties,  and  as  regards 
a  remote  party  other  than  a  holder  in  due  course,  the  delivery, 
in  order  to  be  effectual,  must  be  made  either  by  or  under  the  au- 
thority of  the  party  making,  drawing,  accepting  or  indorsing,  as 
the  case  may  be;  and  in  such  case  the  delivery  may  be  shown  to 
have  been  conditional,  or  for  a  special  purpose  only,  and  not  for 
the  purpose  of  transferring  the  property  in  the  instrument.  But 
where  the  instrument  is  in  the  hands  of  a  holder  in  due  course,  a 
valid  delivery  of  it  by  all  parties  before  him  so  as  to  make  them 
liable  to  him  is  conclusively  presumed.  And  where  the  instrument 
is  no  longer  in  the  possession  of  a  party  whose  signature  appears  on 
it,  a  valid  and  intentional  delivery  by  him  is  presumed  until  the 
contrary  is  proved. 

3098.      Where  the  language   of   the   instrument  is  ambiguous   or 
there  are  omissions  in  it,  the  following  rules  of  construction  apply: 


250  NEGOTIABLE  INSTRUMENTS 


(1)  Where  the  sum  payable  is  expressed  in  words  and  also  in  fig- 
ures and  there  is  a  discrepancy  between  the  two,  the  sum  denoted 
by  the  words  is  the  sum  payable;  but  if  the  words  are  ambiguous 
or  uncertain,  reference  may  be  had  to  the  figures  to  fix  the  amount; 

(2)  Where  the  instrument  provides  for  the  payment  of  interest, 
without  specifying  the  date  from  which  interest  is  to  run,  the  interest 
runs  from  the  date  of  the  instrument,  and  if  the  instrument  is 
undated,  from  the  issue  of  it;  (3)  Where  the  instrument  is  not 
dated,  it  will  be  considered  to  be  dated  as  of  the  time  it  was  issued; 

(4)  Where  there  is  a  conflict  between  the  written  and  printed  pro- 
visions of  the  instrument,  the  written  provisions  prevail;  (5)  Where 
the  instrument  is  so  ambiguous  that  there  is  doubt  whether  it  is  a 
bill  or  note,  the  holder  may  treat  it  as  either  at  his  election;  (6) 
Where  a  signature  is  so  placed  upon  the  instrument  that  it  is  not 
clear  in  what  capacity  the  person  making  the  same  intended  to  sign, 
he  is  to  be  deemed  an  indorser;  (7)  Where  an  instrument  containing 
the  words  "I  promise  to  pay"  is  signed  by  two  or  more  persons,  they 
are  deemed  to  be  jointly  and  severally  liable  on  it. 

(Promissory  Note  With  Joint  and  Several  Liability.) 
LIABILITY.) 
$100.00  Sacramento,  July  4,  1950. 

For  value  received,  six  months  after  date  I  promise  to  pay 
to  Henry  Harrison,  or  order,  one  hundred  dollars,  with  in- 
terest at  seven  per  cent,  per  annum. 

WILLIAM   WALTERS.  HIRAM  JACKS05r 

The  above  note  when  signed  by  one  person  only  is  a  several  note 
for  which  the  signer  alone  is  liable.  But  where  signed  by  two  or 
more  persons,  although  reading  "I  promise  to  pay,"  each  signer 
becomes  severally  liable  for  the  whole  amount  of  the  note  inde- 
pendent of  the  others.  The  holder  can  sue  all  the  makers  together 
or  each  one  separately.  And  in  case  of  death  before  payment  it  be- 
comes a  charge  upon  the  estate  of  the  deceased. 

A  better  form  of  note,  however,  with  joint  and  several  liability, 
is  the  following: 

(JOINT  AND  SEVERAL  NOTE.) 
$100.00  Sacramento,  July  4,  1950. 

For  value  received,  six  months  after  date,  I,  We,  or 
either  of  us  promise  to  pay  to  Henry  Harrison,  or  order, 


NEGOTIABLE  INSTRUMENTS  251 


one  hundred  dollars,  with  interest  at  seven  per  cent,  per 
annum. 

WILLIAM  WALTERS.  HIRAM  JACKSON. 

In  the  form  which  follows  the  wording  is  the  same  as  the  above, 
except  "We  promise  to  pay"  is  substituted  for  "I  promise  to  pay." 
This  makes  it  a  joint  note.  Where  signed  by  two  or  more  persons 
the  obligation  rests  upon  all  together  to  pay  it.  And  while  each  is 
liable  for  the  whole  amount  of  the  note,  they  cannot  be  sued  sepa- 
rately, but  must  be  sued  all  together;  except,  that  if  it  can  be  shown 
that  each  of  the  makers  has  received  some  benefit  from  the  pro- 
ceeds of  the  note,  either  in  the  past  or  in  the  present,  then  the  note 
may  be  con.strued  to  be  joint  and  several,  and  the  makers  may  be  sued 
either  all  together  or  separately.  There  is  also  this  distinction  re- 
specting a  joint  note:  If  one  of  the  makers  dies,  his  liability  ceases 
and  his  estate  cannot  be  sued  upon  it;  the  survivor  alone  is  respon- 
sible, and  in  the  event  of  his  death,  also,  his  estate  is,  if  he  be  the 
final  survivor. 

(JOINT  PROMISSORY  NOTE.) 
$100.00  Sacramento,  July  4,  1950. 

For  value  received,  six  months  after  date  WE  promise 
to  pay  to  Henry  Harrison,  or  order,  one  hundred  dollars, 
with  interest  at  seven  per  cent,  per  annum. 

WILLIAM  WALTERS.  HIRAM  JACKSON. 

3099.  No  person  is  liable  on  the  instrument  whose  signature 
does  not  appear  on  it,  except  as  herein  otherwise  expressly  provided. 
But  one  who  signs  in  a  Trade  or  Assumed  Name  will  be  liable  to  the 
same  extent  as  if  he  had  signed  in  his  own  name. 

A  trade  name,  such  as  "Richard  Roe  &  Company,"  is  as  effective 
if  written  that  way  as  it  would  be  if  followed  by  the  name  of  the 
writer,  as  "Richard  Roe  &  Company,  by  Richard  Roe." 

3100.  The  signature  of  any  party  may  be  made  by  a  duly  author- 
ized agent.  No  particular  form  of  appointment  is  necessary  for  this 
purpose;  and  the  authority  of  the  agent  may  be  established  as  in 
other  cases  of  agency. 

3101.  Where  the  instrument  contains  or  a  person  adds  to  his 
signature  words  indicating  that  he  signs  for  or  on  behalf  of  a  prin- 
cipal, or  in  a  representative  capacity,  he  is  not  liable  on  the  instru- 
ment if  he  was  duly  authorized;  but  the  mere  addition  of  words 
describing  him  as  an  agent,  or  as  filling  a  representative  character, 


252  NEGOTIABLE  INSTRUMENTS 


without  disclosing  his  princapal,  does  not  exempt  him  from  personal 
liability. 

A  signature  as  follows:  "Richard  Roe,  by  Sally  Green,  agent," 
holds  Richard  Roe  but  not  Sally  Green.  But  if  she  signed  simply 
"Sally  Green,  agent,"  without  disclosing  whom  she  was  agent  for, 
she  would  be  liable  alone. 

The  signers  are  personally  liable  in  the  following  signature: 
*'W.  H.  BrowTi,  President;  J.  B.  Smith,  Secretary;"  with  the  seal  of 
the  corporation  impressed  in  the  note.  The  name  of  the  corpora- 
tion should  have  preceded  the  signature;  it  would  then  be  liable  and 
not  the  signers. 

A  check  had  the  name  of  the  company  printed  at  the  top.  It  was 
signed  "B.  Hartley,  president,  Frank  Davids,  seci'etary."  The  com- 
pany name  appeared  nowhere  else.  The  president  and  secretary 
were  personally  liable. 

The  general  rule  seems  to  be  that  one  who  signs  as  "Trustee" 
is  personally  liable,  unless  the  instrument  disclosed  the  principal. 
Where  defendant  signed  note  as  "trustee"  the  principal  must  be  dis- 
closed on  the  face  of  the  paper  in  order  to  relieve  the  maker  from 
liability  to  a  holder  in  due  course;  but  as  between  maker  and  payee, 
if  the  payee  knows  the  nature  and  object  of  the  trust,  and  the  maker 
was  acting  in  his  proper  capacity,  he  is  not  personally  liable  to 
payee,  although  none  of  such  information  appears  on  the  note. 

3102.  A  signature  by  "procuration"  operates  as  notice  that  the 
agent  has  but  limited  authority  to  sign,  and  the  principal  is  bound 
only  in  case  the  agent  in  so  signing  acted  within  the  actual  limits  of 
his  authority. 

3103.  The  indorsement  or  assignment  of  the  instrument  by  a  cor- 
poration or  by  an  infant  passes  the  property  in  it,  notwithstanding 
that  from  want  of  capacity  the  corporation  or  infant  may  incur  no 
liability  on  it. 

3104.  When  a  signature  is  forged  or  made  without  the  authority 
of  the  person  whose  signature  it  purports  to  be,  it  is  wholly  inopera- 
tive, and  no  right  to  retain  the  instrument,  or  to  give  a  discharge 
for  it,  or  to  enforce  payment  thereof  against  any  party  to  it,  can  be 
acquired  through  or  under  such  signature,  unless  the  party,  against 
whom  it  is  sought  to  enforce  such  right,  is  precluded  from  setting  up 
the  forgery  or  want  of  authority. 

3105.  Every  negotiable  instrument  is  deemed  prima  facie  to  have 


NEGOTIABLE  INSTRUMENTS  253 


been   issued  for  a  valuable  consideration;  and   every  person  whose 
signature  appears  on  it  to  have  become  a  party  to  it  for  value. 

3106.  Value  is  any  consideration  sufficient  to  support  a  simple 
contract.  An  antecedent  or  preexisting  debt  constitutes  value;  and 
is  deemed  such  whether  the  instrument  is  payable  on  demand  or  at 
a  future  time. 

3107.  Where  value  has  at  any  time  been  given  for  the  instru- 
ment, the  holder  is  deemed  a  holder  for  value  in  respect  to  all  par- 
ties who  become  such  before  that  time. 

3108.  Where  the  holder  has  a  lien  on  the  instrument,  arising 
from  contract  or  by  implication  of  law,  he  is  deemed  a  holder  for 
value  to  the  extent  of  his  lien. 

3109.  Absence  or  failure  of  consideration  is  matter  of  defense 
as  against  any  person  not  a  holder  in  due  course;  and  partial  fail- 
tire  of  consideration  is  a  defense  pro  tanto,  whether  the  failure  is 
an  ascertained  and  liquidated  amount  or  otherwise. 

The  law  presumes  consideration  for  an  instrument,  but  this 
presumption  is  not  absolute  as  between  the  parties  to  the  instrument, 
and  may  be  rebutted  as  a  matter  of  defense  if  sued  upon.  But  the 
presumption  is  transmitted  into  a  conclusive  and  absolute  presump- 
tion where  the  instrument  has  passed  into  the  hands  of  a  bona  fide 
holder  in  due  course  who  has  purchased  it  for  value  before  matu- 
rity, without  notice  of  any  defect;  in  such  case,  the  want  of  consid- 
eration cannot  be  set  up  as  a  defense  against  payment.  It  is  not  a 
good  defense  that  one  of  two  joint  makers  signed  a  note  with  the 
promise  that  the  payee  would  get  the  pajTnent  out  of  th-e  other 
signer,  who  was  paid  the  money. 

3110.  An  accommodation  party  is  one  who  has  signed  the  in- 
strument as  maker,  drawer,  acceptor,  or  indorser,  without  receiv- 
ing value  for  it,  and  for  the  purpose  of  lending  his  name  to  some 
other  person.  Such  a  person  is  liable  on  the  instrument  to  a  holder 
for  value,  notwithstanding  such  holder  at  the  time  of  taking  the 
instrument  knew  him  to  be  only  an  accommodation  party. 

The  mercantile  credit  of  parties  is  frequently  loaned  to  others 
by  placing  their  names  as  maker,  indorser,  drawer  or  acceptor  upon 
an  instrument  without  consideration  for  so  doing  for  the  purpose  of 
raising  money  by  the  party  accommodated.  Such  instruments  are 
called  accommodation  paper.  The  want  of  consideration  may  be 
shown  as  between  the  accommodator  and  the  accommodated  party. 


254  NEGOTIABLE  INSTRUMENTS 


but  when  the  instrument  has  passed  into  the  hands  of  a  third  party 
for  value,  and  in  the  usual  course  of  business,  it  cannot  be  so  shown. 
Sometimes  the  accommodating  party  is  paid  a  fee  for  lending  his 
name  and  credit.  "Without  receiving  value  therefor"  means,  with- 
out receiving  value  for  the  paper  itself  without  reference  to  any 
consideration  he  may  have  received  for  lending  his  name.  Accom- 
modation instrument  negotiated  for  the  first  time  after  maturity 
cannot  be  enforced  against  accommodating  party,  even  though  pur- 
chased for  value.  It  is  doubtful  if  a  corporation  has  the  right  to 
endorse  a  note  as  accommodation  party,  unless  so  expressly  per- 
mitted by  its  charter. 

3111.  An  instrument  is  negotiated  when  it  is  transferred  from 
one  person  to  another  in  such  manner  as  to  constitute  the  transferee 
the  holder  of  it.  If  payable  to  bearer  it  is  negotiated  by  delivery;  if 
payable  to  order  it  is  negotiated  by  the  indorsement  of  the  holder 
completed  by  delivery.  If  instrument  be  payable  "to  bearer"  it  is 
sufficient  to  simply  hand  it  over  to  the  person  to  whom  it  is  to  be 
transferred,  without  the  necessity  for  indorsement.  Where  payable 
to  a  certain  person  or  his  order  his  indorsement  is  necessary  before 
turning  it  over.  When  thus  delivered  it  may  be  said  to  be  nego- 
tiated. 

3112.  The  indorsement  must  be  written  on  the  instrument  itself 
or  upon  a  paper  attached  to  it.  The  signature  of  the  indorser, 
without  additional  words,  is  a  sufficient  indorsement. 

The  proper  place  for  an  endorsement  is  on  the  back  of  the  instru- 
ment. But  it  may  be  written  any  place  upon  it.  If  written  upon 
the  back,  however,  the  danger  of  being  construed  as  other  than  an 
indorser  is  removed.  It  is  not  necessary  that  the  indorsement  should 
be  on  the  identical  paper  on  which  the  instrument  is  written;  when- 
ever it  is  inconvenient  to  write  upon  the  back  of  an  instrument  the 
contract  between  the  parties  it  may  be  written  upon  another  paper 
and  attached  to  it  with  like  effect.     This  is  known  as  an  allonge. 

Where  a  torn  instrument  has  been  pasted  upon  another  piece  of 
paper  the  indorsement  may  be  made  upon  such  paper.  Stamping  the 
name  of  the  indorser  upon  the  back  of  the  instrument  with  a  rub- 
ber stamp,  with  his  authority  and  with  intent  to  indorse  the  instru- 
ment, is  a  valid  indorsement,  but  does  not  prove  itself  like  a  hand- 
written signature. 

3113.  The  indorsement  must  be  an  indorsement  of  the  entire  in- 


NEGOTIABLE  INSTRUMENTS  255 


strument.  An  indorsement  which  purports  to  transfer  to  the  in- 
dorsee a  part  only  of  the  amount  payable,  or  which  purports  to  trans- 
fer the  instrument  to  two  or  more  indorsees  severally,  does  not 
operate  as  a  negotiation  of  the  instrument.  But  where  the  instru- 
ment has  been  paid  in  part,  it  may  be  indorsed  as  to  the  residue. 

Take  a  note  or  check  for  $500.  Suppose  the  payee  should  de- 
sire to  indorse  $250  to  one  person  and  $250  to  another.  That  can 
not  be  done,  for  the  indorsement  must  be  for  the  whole  amount 
called  for  on  the  face  of  the  instrument.  Therefore,  neither  could 
only  a  portion  of  the  $500  be  indorsed.  But  if  $250  had  been  paid 
on  the  instrument,  then  the  remainder  could  be  indorsed. 

3114.  An  indorsement  may  be  either  special  or  in  blank;  and  it 
may  also  be  either  restrictive  or  qualified,  or  conditional. 

3115.  A  special  indorsement  specifies  the  person  to  whom,  or 
to  whose  order,  the  instrument  is  to  be  payable;  and  the  indorse- 
ment of  such  indorsee  is  necessary  to  the  further  negotiation  of  the 
instrument.  An  indorsement  in  blank  specifies  no  indorsee,  and  an 
instrument  so  endorsed  is  payable  to  bearer,  and  may  be  negotiated 
"by  delivery. 

A  special  indorsement  is  also  known  as  an  indorsement  in  full. 
It  makes  the  instrument  payable  to  a  particular  person  only,  or  to 
him  or  his  order.  "Pay  to  Hiram  Jackson,  or  order,"  is  a  special 
indorsement,  making  the  instrument  payable  to  Hiram  Jackson  or  his 
order  only.  His  endorsement  is  necessary  before  it  can  be  passed 
further  along.  He  in  turn  can  indorse  to  another  person,  making  the 
instrument  still  special,  or  he  can  simply  write  his  name;  it  is  then 
an  indorsement  in  blank,  which  makes  it  payable  to  bearer  or  the 
holder.  An  indorsement  in  blank  is  simply  writing  the  name 
of  the  indorser  on  the  back  of  the  instrument.  It  then  passes  freely 
from  hand  to  hand  like  currency,  being  payable  to  any  proper  bearer 
or  holder.  Notes  indorsed  in  blank  are  transferable  by  simple  de- 
livery, and  one  having  them  in  possession  is  presumably  the  owner, 
and  is  authorized  to  transfer  a  good  title  whenever  delivered  to 
another. 

3116.  The  holder  may  convert  a  blank  indorsement  into  a  special 
indorsement  by  writing  over  the  signature  of  the  indorser  in  blank 
any  contract  consistent  with  the  character  of  the  indorsement.  An 
instrument  so  altered  is  not  restrained  by  it  and  is  still  payable 
to  bearer,  except  that  the  holder  converting  the  blank  indorsement 


256  NEGOTIABLE   INSTRXTMENTS 


into   a   special    indorsement   is    only    liable    to    parties    making   title 
through  his  indorsement, 

3117.  An  indorsement  is  restrictive,  which  either — (1)  Pro- 
hibits the  further  negotiation  of  the  instrument;  or  (2)  Constitutes 
the  indorsee  the  agent  of  the  indorser;  or  (3)  Vests  the  title  in  the 
indorsee  in  trust  for  or  to  the  use  of  some  other  person.  But  the 
mere  absence  of  words  implying  power  to  negotiate  does  no:  make 
an  indorsement  restrictive. 

An  indorsement  to  "Pay  to  Hiram  Jackson  only"  is  a  restrictive 
indorsement  and  puts  an  end  to  further  negotiation  of  the  paper. 
"Pay  to  Bradstreets  for  collection"  is  also  a  restrictive  indorsement. 
The  indorsee  is  thus  made  merely  an  agent  of  the  indorser  to  receive 
the  money  and  pay  over  the  proceeds;  he  cannot  sell  or  dispose  of 
the  instrument  for  his  own  benefit,  nor  can  he  hold  the  indorser 
liable  to  himself.  "Pay  to  So  and  So  in  trust  for  So  and  So,"  or  "For 
account  of  So  and  So"  are  other  examples  of  restrictive  indorsements. 

3118.  A  restrictive  indorsement  confers  upon  the  indorsee  the 
right —  (1)  To  receive  payment  of  the  instrument;  (2)  To  bring  any 
action  on  it  that  the  indorser  could  bring;  (3)  To  transfer  his 
rights  as  such  indorsee,  where  the  form  of  the  indorsement  author- 
izes him  to  do  so.  But  all  subsequent  indorsees  acquire  only  the  title 
of  the  first  indorsee  under  the  restrictive  indorsement. 

3119.  A  qualified  indorsement  constitutes  the  indorser  a  mere 
assignor  of  the  title  to  the  instrument.  It  may  be  made  by  adding 
to  the  indorser's  signature  the  words  "without  recourse"  or  any 
words  of  similar  import.  Such  an  indorsement  does  not  impair  the 
negotiable  character  of  the  instrument. 

A  qualified  indorsement  passes  the  title  to  the  instrument  but 
does  not  guarantee  its  payment.  "Without  recourse  pay  to  Stanley 
Waterman,  Hiram  Jackson."  This  qualified  indorsement  in  effect 
says:  "I  indorse  this  instrument  to  you,  but  I  will  not  be  responsi- 
ble for  the  financial  standing  of  the  other  parties  to  it.  I  do  not 
warrant  that  it  will  be  paid  at  maturity,  nor  if  not  paid  by  the  other 
parties  to  it  that  I  will  pay  it."  Such  indorsement  without  recourse 
does  not  throw  any  discredit  upon  the  instrument,  nor  have  any 
effect  upon  its  negotiability.  While  the  qualified  indorser  does  not 
guarantee  the  payment  of  the  instrument,  he  does,  however,  guar- 
ante  that  it  is  in  all  respects  genuine  and  what  it  purports  to  be; 
that  he  has  a  good  title  to   it;  that  all  prior  parties  had  capacity 


NEGO'T  [ABLE  INSTRUMENTS  257 


to  contract;  that  he  has  no  knowledge  of  any  fact  which  would  impair 
the  validity  of  the  instrument  or  render  it  valueless.  "I  hereby 
transfer  all  my  rif:ht,  title  and  interest  in  and  to  the  within  note," 
is  a  qualified  indorsement. 

3120.  Where  an  indorsement  is  conditional,  a  party  required  to 
pay  the  instrument  may  disregard  the  condition,  and  make  payment 
to  the  indorsee  or  his  transferee,  whether  the  condition  has  been 
fulfilled  or  not.  But  any  person  to  whom  an  instrument  so  indorsed 
is  negotiated,  will  hold  the  same,  or  the  proceeds  of  it,  subject  to 
the  rights  of  the  person  indorsing  conditionally. 

A  conditional  indorsement  is  one  where  the  indorser  adds  some 
condition  to  his  indorsement.  Example:  "Pay  to  Jonathan  Harris 
upon  completion  of  his  contract  to  build  my  bam  upon  which  he  is 
now  working"  is  a  conditional  indorsement.  If  such  a  condition 
appeared  upon  the  face  of  the  instrument  it  would  render  it  non- 
negotiable.  A  condition  attached  to  an  indorsement  is  valid  and 
does  not  affect  the  negotiability  of  the  instrument  so  indorsed. 
(SPECIAL  INDORSEMENT.) 
"Pay  to  Daniel  Clarke,  or  order.      HIRAM   JACKSON." 

(BLANK   INDORSEMENT.) 
"HIRAM  JACKSON." 

(CONDITIONAL   INDORSEMENTS.) 
"Pay  to  Frances  Coolidge  upon  her  18th  birthday. 

HIRAM  JACKSON." 

"Pay   to    Goldstein    &   Abrams,    unless   before   maturity 
I  notify  you  to  the  contrary.  HIRAM  JACKSON." 

(RESTRICTIVE  INDORSEMENT.) 
"Pay  to  Oliver  Perry  only.  HIRAM   JACKSON." 

(INDORSEMENT  FOR  COLLECTION.) 
"Pay  to  Tenth  National  Bank  for  collection. 

HIRAM   JACKSON." 

(INDORSEMENT  WITHOUT  RECOURSE.) 
"HIRAM  JACKSON,  without  recourse." 

(INDORSEMENT  BY  AGENTS.) 
"HIRAM  JACKSON,  as  agent  for  DAVID  HOOLEY." 

(INDORSEMENT  WAIVING  PROTEST.) 
"HIRAM  JACKSON,  waiving  protest." 


258  NEGOTIABLE  INSTRUMENTS 


(GUARANTY  INDORSEMENT.) 
"For  value  received,  I  hereby  guarantee  the  payment  of 
this  note,  together  with  costs  and  attorney's  fees  incurred 
in  collection.  HIRAM  JACKSON." 

3121.  Where  an  instrument,  payable  to  bearer,  is  indorsed  spe- 
cially it  may  nevertheless  be  further  negotiated  by  delivery;  but 
the  person  indorsing  specially  is  liable  as  indorser  to  only  such 
holders  as  make  title  through  his  indorsement.  This  would  seem 
to  indicate  that  where  an  instrument  originally  payable  to  bearer, 
or  so  made  by  blank  indorsement,  it  may  still  be  passed  from  holder 
to  holder  by  mere  delivery  without  the  signature  of  the  special 
indorsee.  The  liability  of  the  special  indorser  is  confined  to  those 
who  acquire  title  through  and  by  reason  of  his  special  indorsement. 

3122.  Where  an  instrument  is  payable  to  the  order  of  two  or  more 
payees  or  indorsees  who  are  not  partners,  all  must  indorse,  xmless  the 
one  indorsing  has  authority  to  indorse  for  the  others. 

3123.  Where  an  instrument  is  drawn  or  indorsed  to  a  person  as 
"cashier"  or  other  fiscal  oflJicer  of  a  bank  or  corporation,  it  is  deemed 
prima  facie  to  be  payable  to  the  bank  or  corporation  of  which  he  is 
such  officer;  and  may  be  negotiated  by  either  the  indorsement  of  the 
bank  or  corporation,  or  the  indorsement  of  the  officer. 

This  section  oveirules  many  former  decisions.  Under  this  section 
an  instrument  made  payable  to  or  indorsed  to  the  "cashier"  or 
"treasurer"  of  the  Broadway  Trust  Company  is  declared  to  be  paya- 
ble to  th«  company,  and  may  be  indorsed  by  either  the  company  or 
by  said  cashier  or  treasurer  or  other  fiscal  officer. 

3124.  Where  the  name  of  a  payee  or  indorsee  is  wrongly  desig- 
nated or  misspelled,  he  may  indorse  the  instrument  as  described  in 
it,  adding  his  proper  signature,  if  he  wishes. 

Where  the  check  is  made  payable  to  "William  Brown,"  and  the 
payee  intended  spells  his  name  "William  Browne,"  he  may  indorse 
it  "William  Brown,"  as  written  in  the  instrument,  and  that  will  suf- 
fice, or  he  may  first  indorse  it  "William  Browne."  The  latter  method 
is  good  practice,  and  is  in  fact  required  by  careful  payors  or  in- 
dorsees. 

3125.  Where  any  person  is  under  obligation  to  indorse  in  a 
representative  capacity,  he  may  indorse  in  such  terms  as  to  nega- 
tive personal  liability. 

3126.  Except  where   an   indorsement  bears  date   after  the   ma- 


NEGOTIABLE  INSTRUMENTS  259 


turity  of  an  instrument,   every  negotiation   is  deemed   prima   facie 
to  have  been  effected  before  the  instrument  was  overdue. 

3127.  Except  wh-ere  the  contrary  appears,  every  indorsement  is 
presumed  prima  facie  to  have  been  made  at  the  place  where  the  in- 
strument is  dated. 

3128.  An  instrument  negotiable  in  its  origin  continues  to  be 
negotiable  until  it  has  been  restrictively  indorsed  or  discharged  by 
payment  or  otherwise. 

3129.  The  holder  may  at  any  time  strike  out  any  indorsement 
which  is  not  necessary  to  his  title.  The  indorser  whose  indorsement 
is  struck  out,  and  all  indorsers  subsequent  to  him,  are  by  it  relieved 
from  liability  on  the  instrument. 

3130.  Where  the  holder  of  an  instrument  payable  to  his  order 
transfers  it  for  value  without  indorsing  it,  the  transfer  vests  in  the 
transferee  such  title  as  the  transferer  had  in  it,  and  the  trans- 
feree acquires,  in  addition,  the  right  to  have  the  indorsement  of  the 
transferer.  But  for  the  purpose  of  determining  whether  the  trans- 
feree is  a  holder  in  due  coui'se,  the  negotiation  takes  effect  as  of  the 
time  when  the  indorsement  is  actually  made. 

An  instrument  transferred  without  indorsement  is  treated  as  a 
chose  in  action  assigned  to  the  purchaser;  a  contract  on  which 
the  assignee  may  bring  an  action  in  his  own  name  to  enforce,  but 
subject  to  all  the  equities  and  defenses  existing  against  the  previous 
holder. 

3131.  Where  an  instrument  is  negotiated  back  to  a  previous 
party  such  party  may,  subject  to  the  provisions  of  this  title,  reissue 
and  further  negotiate  the  same.  But  he  is  not  entitled  to  enforce 
payment  of  it  against  any  intervening  party  to  whom  he  was  person- 
ally liable. 

3132.  The  holder  of  a  negotiable  instrument  may  sue  on  it  in  his 
own  name  and  payment  to  him  in  due  course  discharges  the  instru- 
ment. 

3133.  A  holder  in  due  course  is  a  holder  who  has  taken  the  in- 
strument under  the  following  conditions:  (1)  That  it  is  complete 
and  regular  upon  its  face;  (2)  That  he  became  the  holder  of  it  be- 
fore it  was  overdue,  and  without  notice  that  it  had  been  previotisly 
dishonored,  if  such  was  the  fact;  (3)  That  he  took  it  in  good  faith 
and  for  value;  (4)  That  at  the  time  it  was  negotiated  to  him  he  had 


260  NEGOTIABLE  INSTRUMENTS 


no  notice  of  any  infirmity  in  the  instrument  or  defect  in  the  title 
of  the  person  negotiating  it. 

A  holder  in  due  course  may  be  said  to  be  a  bona  fide  holder,  or 
holder  in  pood  faith.  He  mu.st  have  acquired  the  paper  in  good  faith 
from  his  predecessor.  If  his  acquisition  of  the  paper  be  in  any 
respect  fraudulent  he  cannot  claim  the  position  of  a  bona  fide  holder, 
or  holder  in  due  course.  Where  the  holder  in  due  course  acquires 
the  instrument  in  conformity  with  the  above  rules  he  can  enforce 
payment  of  it  in  full  against  all  parties  liable  on  it.  A  note  pro- 
viding that  any  delinquency  in  the  payment  of  interest  "shall  cause 
the  whole  note  to  become  immediately  due  and  collectible"  is  made 
overdue  by  the  failure  to  pay  the  interest  when  due,  and  a  subse- 
quent taker  cannot  be  a  holder  in  due  course.  A  note  payable  one 
day  after  date  is  not  overdue  at  any  time  on  the  day  after  its  date. 

3134.  Where  an  instrument  payable  on  demand  is  negotiated  an 
unreasonable  length  of  time  after  its  issue,  the  holder  is  not  deemed 
a  holder  in  due  course.     (See  3166.) 

Repeals  the  former  rule  making  demand  note  overdue  immediately 
for  purposes  of  transfer.  A  reasonable  time  is  allowed  before  a 
demand  instrument  can  be  declared  overdue.  For  what  is  a  "rea- 
sonable time"  see  definition. 

3135.  Where  the  transferee  receives  notice  of  any  infirmity  in 
the  instrument  or  defect  in  the  title  of  the  person  negotiating  the 
same  before  he  has  paid  the  full  amount  agreed  to  be  paid  for  it, 
he  will  be  deemed  a  holder  in  due  course  only  to  the  extent  of  the 
amount  theretofore  paid  by  him. 

3136.  The  title  of  a  person  who  negotiates  an  instrument  is  de- 
fective within  the  meaning  of  this  title  when  he  obtained  the  instru- 
ment, or  any  signature  to  it,  by  fraud,  duress,  or  force  and  fear,  or 
other  unlawful  means,  or  for  an  illegal  consideration,  or  when  he  ne- 
gotiates it  in  breach  of  faith,  or  under  such  circumstances  as  amount 
to  a  fraud. 

3137.  To  constitute  notice  of  an  infirmity  in  the  instrument  or 
defect  in  the  title  of  the  person  negotiating  the  same,  the  person  to 
whom  it  is  negotiated  must  have  had  actual  knowledge  of  the  infirm- 
ity or  defect,  or  knowledge  of  such  facts  that  his  action  in  taking 
the  instrument  amounted  to  bad  faith. 

3138.  A  holder  in   due   course   holds   the   instrument  free   from 


M^GOTiABLE   INSTRUMENTS  li(il 


any  defect  of  title  of  prior  parties,  and  free  from  defenses  available 
to  prior  parties  amonjr  themselves,  and  may  enforce  payment  of  the 
instrument  for  the  full  amount  of  it  against  all  parties  liable  on  it. 
There  are  two  classes  of  defenses — personal  and  real.  Personal 
defenses  arc  those  that  grow  out  of  the  conduct  of  a  particular  per- 
son in  regard  to  the  instrument,  and  may  be  enumerated  as:  1. 
Alteration;  2.  Simple  fraud;  3.  Duress;  4.  Want  or  failure  of  con- 
sideration; 5.  Illegality,  unless  declared  void  by  statute;  6.  Payment 
or  renunciation,  or  release  before  maturity.  Although  these  de- 
fenses are  available  by  prior  parties  among  themselves,  the  holder 
in  due  course  is  free  fi'om  them,  for  none  of  them  can  be  set  up 
against  his  title.  But  with  real  defenses  it  is  difTerent.  Real  de- 
fenses are  such  as  attach  to  the  instrument  itself,  and  which  are 
good  against  all  persons,  therefore  against  the  holder  in  due  course 
also.  They  are  founded  upon  a  right,  good  against  all  the  world. 
These  absolute  defenses  are  five  in  number:  1.  Incapacity  to  con- 
tract; 2.  Downright  illegality  of  contract;  3.  Forgery;  4.  Statute 
of  limitations;  5.  Duress,  where  amounting  to  forgery.  The  person 
from  whom  it  is  sought  to  recover  may  ser  up  any  of  these  defenses; 
no  one  is  proof  against  them,  not  eve:?  the  holder  in  good  faith. 

3139.  In  the  hands  of  any  holder  other  than  a  holder  in  due 
course,  a  negotiable  instrument  is  subject  to  the  same  defenses  as 
if  it  were  negotiable.  But  a  holder  who  derives  his  title  through  a 
holder  in  due  course,  and  who  is  not  himself  a  party  to  any  fraud 
or  illegality  affecting  the  instrument,  has  all  the  rights  of  such  for- 
mer holder  in  respect  of  all  parties  before  to  the  latter. 

If  the  holder  of  a  negotiable  instrument  has  transferred  it  and 
aftei^ward  re-acquired  it,  he  is  remitted  to  his  old  position,  as  if 
everything  since  his  transfer  had  been  wiped  out,  unless  his  title 
was  defective,  in  which  case  he  could  not  better  it  by  selling  the  in- 
strument to  a  holder  in  due  course  and  buying  it  back  again. 

3140.  Every  holder  is  deemed  prima  facie  to  be  a  holder  in  due 
course;  but  when  it  is  shown  that  the  title  of  any  person  who  has 
negotiated  the  instrument  was  defective,  the  burden  is  on  the  holder 
to  prove  that  he  or  some  person  under  whom  he  claims  acquired  the 
title  as  holder  in  due  course.  But  the  last-mentioned  rule  does  not 
apply  in  favor  of  a  party  who  became  bound  on  the  instrument  be- 
fore the  acquisition  of  such  defective  title. 

3141.  The  maker  of  a  negotiable  instrument  by  making  it  en- 


262  NEGOTIABLE  INkSTRUMENTS 


gages  that  he  will  pay  it  according  to  its  tenor,  and  admits  the  exis- 
tence of  the  payee  and  his  then  capacity  to  indorse. 

3142.  The  drawer  by  drawing  the  instrument  admits  the  existence 
of  the  payee  and  his  then  capacity  to  indorse;  and  engages  that  on 
due  presentment  the  instrument  will  be  accepted  or  paid,  or  both, 
according  to  its  tenor,  and  that  if  it  be  dishonored,  and  the  neces- 
sary proceedings  on  dishonor  be  duly  taken,  he  will  pay  the  amount 
of  it  to  the  holder,  or  to  any  subsequent  indorser  who  may  be  com- 
pelled to  pay  it.  But  the  drawer  may  insert  in  the  instrument  an 
express  stipulation  negativing  or  limiting  his  own  liability  to  the 
holder. 

3143.  The  acceptor  by  accepting  the  instrument,  engages  that  he 
will  pay  it  according  to  the  tenor  of  his  acceptance;  and  admits — 
(1)  The  existence  of  the  drawer,  the  genuineness  of  his  signature, 
and  his  capacity  and  authority  to  draw  the  instrument;  and  (2) 
The  existence  of  the  payee  and  his  then  capacity  to  indorse. 

3144.  A  person  placing  his  signature  upon  an  instrument  other- 
wise than  as  maker,  drawer,  or  acceptor,  is  deemed  to  be  an  indorser, 
unless  he  clearly  indicates  by  appropriate  v/ords  his  intention  to  be 
bound  in  some  other  capacity. 

3145.  Where  a  person,  not  otherwise  a  party  to  an  instrument, 
places  on  it  his  signature  in  blank  before  delivery  he  is  liable  as  in- 
dorser, in  accordance  with  the  following  rules:  (1)  If  the  instru- 
ment is  payable  to  the  order  of  a  third  person,  he  is  liable  to  the 
payee  and  to  all  subsequent  parties.  (2)  If  the  instrument  is  paya- 
ble to  the  order  of  the  maker  or  drawer,  or  is  payable  to  bearer,  he 
is  liable  to  all  parties  subsequent  to  the  maker  or  drawer.  (3)  If 
he  signs  for  the  accommodation  of  the  payee,  he  is  liable  to  all  par- 
ties subsequent  to  the  payee. 

The  only  liability  that  a  regular  indorser  incurs  is  to  subsequent 
parties.  But  one  who  indorses  an  instrument  before  delivery  is  not 
a  regular  indorser.  He  is  called  an  "irregular  indorser,"  sometimes 
an  "anomalous  indorser."  His  function  is  usually  that  of  a  kindly 
person  who  loans  his  name  to  fortify  the  credit  of  some  one  less 
worthy.  Formerly  his  position  and  liability  were  difficult  and  con- 
fused. He  was  sometimes  held  to  be  "first  indorser,"  "second  in- 
dorser," "joint  maker,"  "guarantor,"  etc.  His  status  is  now  fixed 
as  an  indorser  purely,  and  his  liability  definitely  fixed,  being  chargea- 
ble only  after  presentment  and  notice  of  dishonor. 


NEGOTIABLE  INSTliUxMENTS  llb^ 


3146.  Every  person  negotiating  an  instrument  by  delivery  or  by 
a  qualified  indorsement,  warrants — (1)  That  the  instrument  is  gen- 
uine and  in  all  respects  what  it  purports  to  be;  (2) That  he  has  a 
good  title  to  it;  (3)  That  all  prior  parties  had  capacity  to  contract; 
(4)  That  he  has  no  knowledge  of  any  fact  which  would  impair  the 
validity  of  the  instrument  or  render  it  valueless.  But  when  the 
negotiation  is  by  delivery  only,  the  warranty  extends  in  favor  of  no 
holder  other  than  the  immediate  transferee.  The  provisions  of 
subdivision  three  of  this  section  do  not  apply  to  persons  negotiating 
public  or  corporation  securities,  other  than  bills  and  notes. 

The  person  negotiating  an  instrument  by  simply  delivery,  without 
placing  his  name  upon  it,  and  the  person  negotiating  "without  re- 
course" or  other  qualification,  are  placed  upon  the  same  footing 
as  to  the  things  they  guarantee  by  the  act  of  transfer,  except  that 
in  the  case  of  delivery  without  indorsement  the  guaranty  is  made. 
The  transferrer  is  liable  to  no  one  else.  The  indorser  without  re- 
course, however,  is  liable  to  the  extent  of  the  guarantee  as  stated 
in  this  section  to  all  subsequent  holders. 

3147.  Every  indorser  who  indorses  without  qualification,  warrants 
to  all  subsequent  holders  in  due  course — (1)  The  matters  and  things 
mentioned  in  subdivision  one,  two  and  three  of  the  next  preceding 
section;  and  (2)  That  the  instrument  is  at  the  time  of  his  indorse- 
ment valid  and  subsisting.  And,  in  addition,  he  engages  that  on 
due  prc'soitment,  it  shall  be  accepted  or  paid,  or  both,  as  the  case 
may  be,  according  to  its  tenor,  and  that  if  it  be  dishonored,  and 
the  necessary  proceedings  on  dishonor  be  duly  taken,  he  will  pay 
the  amount  of  it  to  the  holder,  or  to  any  subsequent  indorser  who 
may  be  compelled  to  pay  it. 

The  general  indorser  without  qualification  warrants  to  all  subse- 
quent holders  in  due  course  that  the  instrument  is  genuine,  that  he 
has  good  title  to  it,  and  that  all  prior  parties  had  capacity  to  con- 
tract. Also  (in  this  respect  differing  from  the  guaranty  of  the  trans- 
ferrer by  delivery  or  by  qualified  indorsement,  who  simply  warrant 
that  they  have  no  knowledge  of  any  fact  which  would  impair  the 
validity  of  the  instrument),  the  general  indorser  absolutely  guaran- 
tees the  instrument  to  be  valid  and  rightfully  in  existence  at  the  time 
of  his  indorsement.  In  addition  he  engages  to  pay  the  same  under 
the  conditions  as  stated  in  the  last  paragraph  of  the  section. 

3148.  Where  a  person  places  his  indorsement  on  an  instrument 
negotiable  by  delivery  he  incurs  all  the  liabilities  of  an  indorser. 


2G4  NEGOTIABLE  INSTKUMENTB 


3149.  As  respects  one  another  indorsers  are  liable  prima  facie 
in  the  order  in  which  they  indorse;  but  evidence  is  admissible  to 
show  that  as  between  or  among  themselves  they  have  agreed  other- 
wise. Joint  payees  or  joint  indorsers  v/ho  indorse  are  deemed  to 
indorse   jointly  and   severally. 

3150.  Where  a  broker  or  other  agent  negotiates  an  instrument 
without  indorsement  he  incurs  all  the  liabilities  prescribed  by  sec- 
tion three  thousand  one  hundred  forty-seven,  unless  he  discloses  the 
name  of  his  principal,  and  the  fact  that  he  is  acting  only  as  agent. 

3151.  Presentment  for  payment  is  not  necessary  in  order  to  charge 
the  person  primarily  liable  on  the  instrument;  but  if  the  instrument 
by  its  terms  is  payable  at  a  special  place,  and  he  is  able  and  willing 
to  pay  it  there  at  maturity,  such  liability  and  willingness  are  equiva- 
lent to  a  tender  of  payment  upon  his  part.  But  except  as  herein 
otherwise  provided,  presentment  for  payment  is  necessary  in  order 
to  charge  the  drawer  and  indorsers. 

Where  there  is  only  one  person — the  maker  or  drawer — liable  on 
an  instrument  it  is  not  necessary  to  present  it  to  him  for  payment. 
He  is  supposed  to  know  when  his  obligations  become  due.  But 
where  there  are  indorsers  it  is  different.  The  contract  of  the  in- 
dorser  in  effect  is  this:  ''I  will  pay  this  instrument  if  the  other 
parties  liable  do  not,  but  it  must  be  presented  to  them  first,  and  no- 
tice of  their  refusal  given  to  me."  The  provisions  of  the  sections 
which  follow  apply  to  instruments  where  others  than  the  person 
primarily  liable  are  to  be  charged. 

"But  where  a  promissory  note  is  in  the  body  of  it  made  payable 
at  a  particular  place  it  must  be  presented  at  that  place  in  order  to 
render  the  maker  liable.  (Referring,  as  stated,  to  cases  where  there 
are  indorsers.)  But  where  only  the  maker  is  liable,  presentment 
for  payment  is  unnecessary  in  order  to  charge  him  whether  the  in- 
strument is  payable  on  time  or  on  demand,  although  it  is  made  pay- 
able at  a  particular  place." 

Where  an  instrument  is  payable  at  a  certain  bank  or  other  desig- 
nated place,  if  the  funds  are  there  for  that  purpose  it  is  equivalent 
to  a  tender  of  payment  and  releases  the  liable  party  if  he  keeps 
his  tender  good,  except,  of  course,  as  to  a  holder  in  due  course. 

3152.  Where  the  instrument  is  not  payable  on  demand,  present- 
ment must  be  made  on  the  day  it  falls  due.     Where  it  is  payable  on 


NP:G0TIABLE  instruments  265 


demand,  presentment  must  be  made  within  a  reasonable  time  after 
its  issue,  except  that  in  the  case  of  a  bill  of  exchange,  presentment 
for  payment  will  be  sufficient  if  made  within  a  reasonable  time  after 
the  last  negotiation  of  it. 

"Where  the  instrument  is  payable  on  demand,  presentment  must 
be  made  within  a  reasonable  time  after  its  issue  in  order  to  render 
the  drawer  liable,  and  within  a  reasonable  time  after  its  indorse- 
ment in  order  to  render  the  indorser  liable.  If  it  be  not  so  presented 
the  indorser  is  discharged." 

3153.  Presentment  for  payment,  to  be  sufficient,  must  be  made — 
(1)  By  the  holder,  or  by  some  person  authorized  to  receive  payment 
on  his  behalf;  (2)  At  a  reasonable  hour  on  a  business  day;  (3)  At  a 
proper  place  as  herein  defined;  (4)  To  the  person  primarily  liable  on 
the  instrument,  or  if  he  is  absent  or  inaccessible,  to  any  person  found 
at  the  place  where  the  presentment  is  made. 

3154.  Presentment  for  payment  is  made  at  the  proper  place 

(1)  Where  a  place  of  payment  is  specified  in  the  instrument  and  it 
is  there  presented;  (2)  Where  no  place  of  payment  is  specified,  but 
the  address  of  the  person  to  make  payment  is  given  in  the  instiniment 
and  it  is  there  presented;  (3)  Where  no  place  of  payment  is  speci- 
fied and  no  address  is  given  and  the  instrument  is  presented  at  the 
usual  place  of  business  or  residence  of  the  person  to  make  payment; 
(4)  In  any  other  case  if  presented  to  the  person  to  make  payment 
wherever  he  can  be  found,  or  if  presented  at  his  last  known  place 
of  business  or  residence. 

3155.  The  instrument  must  be  exhibited  to  the  person  from  whom 
payment  is  demanded,  and  when  it  is  paid  must  be  delivered  up  to 
the  party  paying  it. 

3156.  Where  the  instrument  is  payable  at  a  bank,  presentment 
for  payment  must  be  made  during  banking  hours,  unless  the  person 
to  make  payment  has  no  funds  there  to  meet  it  at  any  time  during 
the  day,  in  which  case  presentment  at  any  hour  before  the  bank  is 
closed  on  that  day  is  sufficient. 

The  person  to  make  payment  has  until  the  close  of  banking  hours 
of  the  bank  where  instrument  is  made  payable  in  which  to  pay  it, 
and  if  before  the  close  of  such  hours  he  deposits  money  enough  to  pay 
it,  a  demand  earlier  in  the  day  is  premature,  and  not  sufficient  pre- 
sentment. 

3157.  Where  a  person  primarily  liable  on  the  instrument  is  dead, 


iG8  XEGOTIAULE  INSTRUMENTS 


and  no  place  of  pajinent  is  specified,  presentment  for  payment  must 
be  made  to  his  personal  representatives  if  such  there  be,  and  if, 
with  the  exercise  of  reasonable  diligence,  he  can  be  found. 

3158.  Where  the  persons  primarily  liable  on  the  instrument  are 
liable  as  partners,  and  no  place  of  payment  is  specified,  present- 
ment for  paytp.ent  may  be  made  to  any  one  of  them,  even  thouffh 
there  has  been  a  dissolution  of  the  firm. 

3159.  Where  there  are  several  persons,  not  partners,  primarily 
liable  on  the  instrument,  and  no  place  of  payment  is  specified,  pre- 
sentment must  be  made  to  them  all. 

3160.  Presentment  for  payment  is  not  required  in  order  to  charge 
the  drawer  where  he  has  no  right  to  expect  or  require  that  the 
drawee  or  acceptor  will  pay  the  instrument. 

3161.  Presentment  for  payment  is  not  required  in  order  to  charge 
an  indorser  where  the  instrument  was  made  or  accepted  for  his 
accommodation  and  he  has  no  reason  to  expect  that  the  instrument 
will  be  paid  if  presented. 

3162.  Delay  in  making  presentment  for  payment  is  excused  when 
delay  is  caused  by  circumstances  beyond  the  control  of  the  holder, 
and  not  imputable  to  his  default,  misconduct  or  negligence.  When 
the  cause  of  delay  ceases  to  operate,  presentment  must  be  made  with 
reasonable   diligence. 

3163.  Presentment  for  payment  is  dispensed  with — (1)  Where 
after  the  exercise  of  reasonable  diligence  presentment  as  required 
by  this  title  can  not  be  made;  (2)  Where  the  drawee  is  a  fictitious 
person;  (3)  By  waiver  of  presentment,  express  or  implied. 

3164.  The  instrument  is  dishonored  by  nonpayment  when — (1) 
It  is  duly  presented  for  payment  and  payment  is  refused  or  can 
not  be  obtained;  or  (2)  Presentment  is  excused  and  the  instrument  is 
overdue  and  unpaid. 

3165.  Subject  to  the  provisions  of  this  title,  when  the  instrument 
is  dishonored  by  nonpayment,  an  immediate  right  of  recourse  to  all 
parties  secondarily  liable  on  it  accrues  to  the  holder. 

3166.  Every  negotiable  instrument  is  payable  at  the  time  fixed 
in  it  without  grace.  When  the  day  of  maturity  falls  upon  Sunday, 
or  a  holiday,  the  instrument  is  payable  on  the  next  succeeding  busi- 
ness day.  Instruments  falling  due  or  becoming  payable  on  Saturday 
are  to  be  presented  for  payment  on  the  next  succeeding  business 
day,  except  that  instruments  payable  on  demand  may,  at  the  option 


NEGOTIABLE  INSTRUMENTS  267 


of  the  holder,  be  presented  for  payment  before  twelve  o'clock  noon 
on  Saturday  when  that  entire  day  is  not  a  holiday.     (See  3134.) 

3167.  Where  the  instrument  is  payable  at  a  fixed  period  after 
date,  after  sight,  or  after  the  happening  of  a  specified  event,  the 
time  of  payment  is  determined  by  excluding  the  day  from  which 
the  time  is  to  begin  to  run,  and  by  including  the  date  of  payment. 

3168.  Where  the  instrument  is  made  payable  at  a  bank  it  is 
equivalent  to  an  order  to  the  bank  to  paj'  the  same  for  the  account 
of  the  principal  debtor  thereon. 

3169.  Payment  is  made  in  due  course  when  it  is  made  at  or  after 
the  maturity  of  the  instrument  to  the  holder  of  it  in  good  faith  and 
without  notice  that  his  title  is  defective. 

3170.  Elxcept  as  herein  otherwise  provided,  when  a  negotiable  in- 
strument has  been  dishonored  by  nonacceptance  or  nonpayment, 
notice  of  dishonor  must  be  given  to  the  drawer  and  to  each  indorser 
and  any  drawer  or  indorser  to  whom  such  notice  is  not  given  is 
discharged. 

Notice  of  dishonor  is  the  bringing,  either  verbally  or  by  writing, 
to  the  knowledge  of  the  drawer  or  indorser  of  an  instrument  the  fact 
that  it  has  been  presented  and  not  accepted  or  paid.  In  addition 
to  the  statement  of  the  fact  of  dishonor  the  notice  should  also  con- 
tain an  announcement  of  the  intention  to  look  to  the  party  notified 
for  payment. 

3171.  The  notice  may  be  given  by  or  on  behalf  of  the  holder,  or 
by  or  on  behalf  of  any  party  to  the  instrument  who  might  be  com- 
pelled to  pay  it  to  the  holder,  and  who  upon  taking  it  up  would  have 
a  right  to  reimbursement  from  the  party  to  whom  the  notice  is 
given. 

3172.  Notice  of  dishonor  may  be  given  by  an  agent  either  in  his 
own  name  or  in  the  name  of  any  party  entitled  to  give  notice, 
whether  that  party  be  his  principal  or  not. 

3173.  Where  notice  is  given  by  or  on  behalf  of  the  holder,  it 
inures  for  the  benefit  of  all  subsequent  holders  and  all  prior  parties 
who  have  a  right  of  recourse  against  the  party  to  whom  it  is  given. 

3174.  Where  notice  is  given  by  or  on  behalf  of  a  party  entitled 
to  give  notice,  it  inures  for  the  benefit  of  the  holder  and  all  parties 
subsequent  to  the  party  to  whom  notice  is  given. 

3175.  Where  the  instrument  has  been  dishonored  in  the  hands 
of  an  agent,  he  may  either  himself  give  notice  to  the  parties  liable 


268  XEGOTIAliLE    1  XSTRUMF.NTS 


on  it,  or  he  may  give  notice  to  his  principal.  If  he  give  notice  to  his 
principal,  he  must  do  so  within  the  same  time  as  if  he  were  the  holder, 
and  the  principal  upon  the  receipt  of  such  notice  has  himself  the 
same  time  for  ,y:ivin:;  notice  as  if  the  a.'^ent  liad  been  an  independ- 
ent  holder. 

317G.  A  written  notice  need  not  be  signed,  and  an  insufficient 
writtt-n  notice  may  be  supplemented  and  validated  by  verbal  com- 
munication. A  misdescription  of  the  instrument  does  not  vitiate  the 
notice  unless  the  party  to  vvrhom  the  notice  is  given  is  in  fact  misled 
by  it. 

3177.  The  notice  may  be  in  writing  or  merely  oral  and  may  be 
given  in  any  terms  which  sufficiently  identify  the  instrument,  and 
indicate  that  it  has  been  dishonored  by  nonacceptance  or  nonpay- 
ment. It  may  in  all  cases  be  given  by  delivering  it  personally  or 
through  the  mails. 

3178.  Notice  of  dishonor  may  be  given  either  to  the  party  him- 
self or  to  his  agent  in  that  behalf. . 

3179.  When  any  party  is  dead  and  his  death  is  known  to  the 
party  giving  notice,  the  notice  must  be  given  to  a  personal  repre- 
sentative, if  there  be  one,  and  if  with  reasonable  diligence  he  can 
be  found.  If  there  be  no  personal  repre-,entative,  notice  may  be 
sent  to  the  last  residence  or  last  place  of  business  of  the  deceased. 

3180.  Where  the  parties  to  be  notified  are  partners,  notice  to 
any  one  partner  is  notice  to  the  firm  even  though  there  has  been  a 
dissolution. 

3181.  Notice  to  joint  parties  who  are  not  partners  must  be  given 
to  each  of  them,  unless  one  of  them  has  authority  to  receive  such 
notice  for  the  others. 

3182.  Where  a  party  has  been  adjudged  a  bankrupt  or  an  insol- 
vent, or  has  made  an  assignment  for  the  benefit  of  creditors,  notice 
may  be  given  either  to  the  party  himself  or  to  his  trustee  or  assignee. 

3183.  Notice  may  be  given  as  soon  as  the  instrument  is  dishon- 
ored; and  unless  delay  is  excused  as  hereinafter  provided,  must  be 
given  within  the   times  fixed  by   this  title. 

3184.  Where  the  person  giving  and  the  person  to  receive  notice 
reside  in  the  same  place,  notice  must  be  given  in  the  following  times: 
(1)  If  given  at  the  place  of  business  of  the  person  to  receive  notice, 
it  must  be  given  before  the  close  of  business  hours  on  the  day  fol- 
lowing;   (2)   If  given  at  his  residence,  it  must  be  given  before  the 


NEGOT TABLE  INSTRUMENTS  2f;i) 


usual  hours  on  the  day  following;  (3)  If  sent  by  mail,  it  must  be 
deposited  in  the  post  office  in  time  to  reach  him  in  usual  course  on 
the   day  following. 

3185.  Where  the  person  giving  and  the  person  to  receive  notice 
resides  in  different  places,  th«  notice  must  be  given  within  the  fol- 
lowing times:  (1)  If  sent  by  mail,  it  must  be  deposited  in  the  post 
office  in  time  to  go  by  mail  the  day  following  the  day  of  dishonor, 
or  if  there  be  no  mail  at  a  convenient  hour  on  that  day,  by  the 
next  mail  thereafter;  (2)  If  given  otherwise  than  through  the  post 
office,  then  within  the  time  that  notice  would  have  been  recevied 
in  due  course  of  mail,  if  it  had  been  deposited  in  the  post  office  within 
the  time  specified  in  the  last  subdivision. 

3186.  Where  notice  of  dishonor  is  duly  addressed  and  deposited  in 
the  post  office,  the  sender  is  deemed  to  have  given  due  notice,  not- 
withstanding any  miscarriage  in  the  mails. 

3187.  Notice  is  deemed  to  have  been  deposited  in  post  office  when 
deposited  in  any  branch  post  office  or  in  any  letter  box  under  the 
control  of  the  post  office  department. 

3188.  Where  a  party  receives  notice  of  dishonor,  he  has,  after  the 
receipt  of  such  notice,  the  same  time  for  giving  notice  to  antecedent 
parties  that  the  holder  has  after  the   dishonor. 

3189.  Where  a  party  has  added  an  address  to  his  signature,  no- 
tice of  dishonor  must  be  sent  to  that  address;  but  if  he  has  not 
given  such  address,  then  the  notice  must  be  sent  as  follows:  (1) 
Either  to  the  post  office  nearest  to  his  place  of  residence,  or  to  the 
post  office  v/here  he  is  accustomed  to  receive  his  letters;  or  (2)  If  he 
live  in  one  place,  and  have  his  place  of  business  in  another,  notice 
may  be  sent  to  either  place;  or  (3)  If  he  is  sojourning  in  another 
place,  notice  may  be  sent  to  the  place  where  he  is  sojourning.  But 
where  the  notice  is  actually  received  by  the  party  within  the  time 
specified  in  this  title,  it  will  be  sufficient,  though  not  sent  in  accord- 
ance with  the  requirements  of  this  section. 

3190.  Notice  of  dishonor  may  be  waived,  either  before  the  time 
of  giving  notice  has  arrived,  or  after  the  omission  to  give  due  notice, 
and  the  waiver  may  be  express  or  implied. 

3191.  Where  the  waiver  is  embodied  in  the  instrument  itself,  it  is 
binding  upon  all  parties;  but  where  it  is  written  above  the  signature 
of  an  indorser,  it  binds  him  only. 

3192.  A  waiver  of  protest,  whether  in  the  case  of  a  foreign  bill 


270  NEGOTIABLE  INSTRUMENTS 


of  exchange  or  other  negotiable  instrument,  is  deemed  to  be  a 
waiver  not  only  of  formal  protest,  but  also  of  presentment  and 
notice  of  dishonor. 

3193.  Notice  of  dishonor  is  dispensed  with  when,  after  the  exer- 
cise of  reasonable  diligence,  it  can  not  be  given  to  or  does  not  reach 
the  parties  sought  to  be  charged. 

3194.  Delay  in  giving  notice  of  dishonor  is  excused  when  the 
delay  is  caused  by  circumstances  beyond  the  control  of  the  holder, 
and  not  imputable  to  his  default,  misconduct  or  negligence.  When 
the  cause  of  delay  ceases  to  operate,  notice  must  be  given  with  rea- 
sonable  diligence. 

3195.  Notice  of  dishonor  is  not  required  to  be  given  to  the  drawer 
in  either  of  the  following  cases:  (1)  Where  the  drawer  and  drawee 
are  the  same  person;  (2)  When  the  drawee  is  a  fictitious  person  or 
a  person  not  having  capacity  to  contract;  (3)  When  the  drawer  is 
a  person  to  whom  the  instrument  is  presented  for  payment;  (4) 
Where  the  drawer  has  no  right  to  expect  or  require  that  the  drawee 
or  acceptor  will  honor  the  instrument.  (5)  Where  the  drawer  has 
countermanded  payment. 

3196.  Notice  of  dishonor  is  not  required  to  be  given  to  an  in- 
dorser  in  either  of  the  following  cases:  (1)  Where  the  drawee  is  a 
fictitious  person  or  a  person  not  having  capacity  to  contract,  and 
the  indorser  was  aware  of  the  fact  at  the  time  he  indorsed  the  instru- 
ment; (2)  Where  the  indorser  is  the  person  to  whom  the  instrument 
is  presented  for  payment;  (3)  Where  the  instrument  was  made  or 
accepted  for  his  accommodation. 

3197.  Where  due  notice  of  dishonor  by  nonacceptance  has  been 
given  notice  of  a  subsequent  dishonor  by  nonpayment  is  not  neces- 
sary, unless  in  the  meantime  the  instrument  has  been  accepted. 

3198.  An  omission  to  give  notice  of  dishonor  by  nonacceptance 
does  not  prejudice  the  rights  of  a  holder  in  due  course  subsequent 
to  the  omission. 

3199.  Where  any  negotiable  instrument  has  been  dishonored  it 
may  be  protested  for  nonacceptance  or  nonpayment,  as  the  case  may 
be;  but  protest  is  not  required,  except  in  the  case  of  foreign  bills  of 
exchange. 

3200.  A  negotiable  instrument  is  discharged — (1)  By  payment  in 
due  course  by  or  on  behalf  of  the  principal  debtor;  (2)  By  payment 
in  due  course  by  the  party  accommodated,  where  the  instrument  is 


NEGOTIABLE  INSTRUMENTS  2-71 


made  or  accepted  for  accommodation;  (3)  By  the  intentional  can- 
cellation of  it  by  the  holder;  (4)  By  any  other  act  which  will 
discharge  a  simple  contract  for  the  payment  of  money.  An  instru- 
ment is  discharged  by  accord  and  satisfaction  by  the  receipt  of  some 
collateral  thing  from  the  maker  or  acceptor.  If  the  holder  chooses 
to  accept  a  mule  instead  of  the  money  value  of  the  paper  it  dis- 
charges the  obligation;  (5)  When  the  principal  debtor  becomes  the 
holder  of  the  instrument  at  or  after  maturity  in  his  own  right. 

3201.  A  person  secondarily  liable  on  the  instrument  is  discharged 
—  (1)  By  any  act  which  discharges  the  instrument;  (2)  By  the  inten- 
tional cancellation  of  his  signature  by  the  holder;  (3)  By  the  dis- 
charge of  a  prior  party.  This  means  discharge  by  agreement  between 
the  parties  and  not  to  discharge  by  operation  of  law.  Thus,  the  dis- 
charge in  bankruptcy  of  the  maker  of  a  note  does  not  affect  the  lia- 
bility of  the  other  parties  on  the  note.  The  discharge  of  an  in- 
dorser  because  not  notified  of  dishonor  would  not  discharge  other 
indorsers  properly  notified.  But  the  discharge  or  release  of  an 
indorser  by  the  holder  releases  all  subsequent  indorsers.  It  is  to 
such  discharges  that  the  statute  refers — release  by  agreement  where 
not  contrary  to  law;  (4)  By  a  valid  tender  of  payment  made  by  a 
prior  party;  (5)  By  a  release  of  the  principal  debtor,  unless  the 
holder's  right  of  recourse  against  the  party  secondarily  liable  is 
expressly  reserved.  (6)  By  any  agreement  binding  upon  the  holder 
to  extend  the  time  of  payment,  or  to  postpone  the  holder's  right 
to  enforce  the  instrument,  unless  made  with  the  assent  of  the  party 
secondarily  liable,  or  unless  the  right  of  recourse  against  such 
party  is  expressly  reserved. 

3202.  Where  the  instrument  is  paid  by  a  party  secondarily  liable 
on  it,  it  is  not  discharged;  but  the  party  so  paying  it  is  remitted 
to  his  former  rights  as  regards  all  prior  parties,  and  he  may  strike 
out  his  own  and  all  subsequent  indorsements,  and  again  negotiate 
the  instrument,  except — (1)  Where  it  is  payable  to  the  order  of  a 
third  person,  and  has  been  paid  by  the  drawer;  and  (2)  Where  it 
was  made  or  accepted  for  accommodation,  and  has  been  paid  by 
the  party  accommodated. 

3203.  The  holder  may  expressly  renounce  his  rights  against  any 
party  to  the  instrument,  before,  or  after  its  maturity.  An  absolute 
and  unconditional  renunciation  of  his  rights  against  the  principal 
debtor  made  at  or  after  the  maturity  of  the  instrument  discharges  the 


272  NEGOTIABLE  INSTRUMENTS 


instrument.  But  a  renunciation  does  not  affect  the  rights  of  a 
holder  in  due  course  without  notice.  A  renunciation  must  be  in 
writing,  unless  the  instrument  is  delivered  up  to  the  person  primarily 
liable  on  it. 

3204.  A  cancellation  made  unintentionally,  or  undtT  a  mistake 
or  without  the  authority  of  the  holder,  is  inoperative;  but  where  an 
instrument  or  any  signature  on  it  appears  to  have  been  cancelled, 
the  burden  of  proof  lies  on  the  party  who  alleges  that  the  cancella- 
tion was  made  unintentionally,  or  under  a  mistake  or  without  au- 
thority. 

3205.  Where  a  negotiable  instrument  is  materially  altered  with- 
out the  assent  of  all  parties  liable  on  it,  it  is  avoided,  except  as 
against  a  party  who  has  himself  made,  authorized  or  assented  to 
the  alteration,  and  subsequent  indorsers.  But  when  an  instrument 
has  been  materially  altered  and  is  in  the  hands  of  a  holder  in  due 
course,  not  a  party  to  the  alteration,  he  may  enforce  payment  of  it 
according  to  the  original  tenor. 

3206.  Any  alteration  which  changes — (1)  The  date;  (2)  The 
sum  payable,  either  principal  or  interest;  (3)  The  time  or  place  of 
payment;  (4)  The  number  or  the  relations  of  the  parties;  (5)  The 
medium  or  currency  in  which  payment  is  to  be  made;  or  which  adds 
a  place  of  payment  where  no  place  of  payment  is  specified,  or  any 
other  change  or  addition  which  alters  the  effect  of  the  instrument 
in  any  respect,  is  a  material  alteration. 

3207.  A  bill  of  exchange  is  an  unconditional  order  in  writing 
addressed  by  one  person  to  another,  signed  by  the  person  giving  it, 
requiring  the  person  to  whom  it  is  addressed  to  pay  on  demand  or  at 
a  fixed  or  determined  future  time  a  sum  certain  in  money  to  order 
or  to  bearer. 

3208.  A  bill  of  itself  does  not  operate  as  an  assignment  of  the 
funds  in  the  hands  of  the  drawee  available  for  the  payment  there- 
of, and  the  drawee  is  not  liable  on  the  bill  unless  and  until  he  ac- 
cepts the  same. 

3209.  A  bill  may  be  addressed  to  two  or  more  drawees  jointly, 
whether  they  are  partners  or  not;  but  not  to  two  or  more  drawees 
in  the  alternative  or  in  succession. 

3210.  An  inland  bill  of  exchange  is  a  bill  which  is  or  on  its  face 
purports  to  be,  both  drawn  and  payable  within  this  state.    Any  other 


NEGOTIABLE  INSTRUMENTS  273 


bill  is  a  foreign  bill.     Unless  the  contrary  appears  on  the  face  of  the 
bill,  the  holder  may  treat  it  as  an  inland  bill. 

(INLAND  BILL  OF  EXCHANGE,  DRAWN  AT  SIGHT.) 
$100.00  Sacramento,  Cal.,  July  4,  1950. 

At  sis?ht  pay  to  Henry  Harrison,  or  order,  one  hundred 
dollars,  value  received  and  charge  to  account  of 

HIRAM  JACKSON. 
(INLAND  BILL  OF  EXCHANGE,  DRAWN  AT  THIRTY 

DAYS'  SIGHT.) 
$100.00  Sacramento,  Cal.,  July  4,  1950. 

Thirty  days  after  sight  pay  to  Henry  Harrison,  or  order, 
one  hundred  dollars,  value  received  and  charge  to  the  ac- 
count of  HIRAM  JACKSON. 
TO  MARSHALL  &  HORN, 
Los  Angeles,   Cal. 

(INLAND  BILL  OF  EXCHANGE,  DRAWN  AT  THIRTY 

DAYS  AFTER  DATE.) 
$100.00  Sacramento,  Cal.,  July  4,  1950. 

Thirty  days  after  date  pay  to  Henry  Harrison,  or  order, 
one  hundred  dollars,  value  received  and  charge  to  the  ac- 
count of  HIRAM  JACKSON. 
TO  MARSHALL  &  HORN, 
Los  Angeles,   Cal. 
The  above  are  all  drawn  and  payable  within  the  same  state  and 
are  therefore   inland  bills.        Foreign   bills  would   have   exactly   the 
same  form  except  that  they  would  be  drawn  in  one  state  or  country 
and  payable  in  another. 

3211.  Where  in  a  bill  drawer  and  drawee  are  the  same  person,  or 
where  the  drawee  is  a  fictitious  person,  or  a  person  not  having  ca- 
pacity to  contract,  the  holder  may  treat  the  instrument,  at  his  op- 
tion, either  as  a  bill  of  exchange  or  a  promissory  note. 

3212.  The  drawer  of  a  bill  and  any  indorser  may  insert  on  it 
the  name  of  a  person  to  whom  the  holder  may  resort  in  case  of  need, 
that  is  to  say  in  case  the  bill  is  dishonored  by  nonacceptance  or  non- 
payment. Such  person  is  called  the  referee  in  case  of  need.  It  is 
in  the  option  of  the  holder  to  resort  to  the  referee  in  case  of  need  or 
not  as  he  may  see  fit. 

3213.  The  acceptance  of  a  bill  is  the  signification  by  the  drawee 
of  his  assent  to  the  order  of  the  drawer.     The  acceptance  must  be 


274  NEGOTIABLE  INSTRUMENTS 


in  writing  and  signed  by  the  drawee.  It  must  not  express  that  the 
drawee  will  perform  his  promise  by  any  other  means  than  the  pay- 
ment of  money. 

3214.  The  holder  of  a  bill  presenting  it  for  acceptance  may  re- 
quire that  the  acceptance  be  written  on  the  bill  and,  if  such  request 
is  refused  may  treat  the  bill  as  dishonored. 

3215.  Where  an  acceptance  is  written  on  a  paper  other  than  the 
bill  itself,  it  does  not  bind  the  acceptor  except  in  favor  of  a  person 
to  whom  it  is  shown  and  who,  on  the  faith  thereof,  receives  the  bill 
for  value, 

3216.  An  unconditional  promise  in  writing  to  accept  a  bill  before 
it  is  drawn  is  deemed  an  actual  acceptance  in  favor  of  every  person 
who,  upon  the  faith  thereof,  receives  the  bill  for  value. 

3217.  The  drawee  is  allowed  twenty-four  hours  after  presentment 
in  which  to  decide  whether  or  not  he  will  accept  the  bill;  but  the 
acceptance,  if  given,  dates  as  of  the  day  of  presentation. 

3218.  Where  a  drawee  to  whom  a  bill  is  delivered  for  acceptance 
destroys  the  same,  or  refuses  within  twenty-four  hours  after  such 
delivery,  or  within  such  other  period  as  the  holder  may  allow,  to 
return  the  bill  accepted  or  nonaccepted  to  the  holder,  he  will  be 
deemed  to  have  accepted  the  same. 

3219.  A  bill  may  be  accepted  before  it  has  been  signed  by  the 
drawer,  or  while  otherwise  incomplete,  or  when  it  is  overdue,  or 
after  it  has  been  dishonored  by  a  previous  refusal  to  accept,  or  by 
nonpayment.  But  when  a  bill  payable  after  sight  is  dishonored  by 
nonacceptance  and  the  drawee  subsequently  accepts  it,  the  holder  in 
the  absence  of  any  different  agreement,  is  entitled  to  have  the  bill 
accepted  as  of  the  date  of  the  first  presentment. 

3220.  An  acceptance  is  either  general  or  qualified.  A  general 
acceptance  assents  without  qualification  to  the  order  of  the  drawer. 
A  qualified  acceptance  in  express  terms  varies  the  effect  of  the  bill 
as  drawn. 

3221.  An  acceptance  to  pay  at  a  particular  place  is  a  general 
acceptance,  unless  it  expressly  states  that  the  bill  is  to  be  paid  there 
only  and  not  elsewhere. 

3222.  An  acceptance  is  qualified,  which  is — (1)  Conditional,  that 
is  to  say,  which  makes  payment  by  the  acceptor  dependent  on  the 
fulfillment  of  a  condition  stated  in  it;  (2)  Partial,  that  is  to  say, 
as  acceptance  to  pay  part  only  of  the  amount  for  which  the  bill 


NEGOTIABLE  INSTRUMENTS  275 


is  drawn;  (3)  Local,  that  is  to  say,  an  acceptance  to  pay  only  at  a 
particular  place;  (4)  Qualified  as  to  time;  (5)  The  acceptance  of 
some  one  or  more  of  the  drawees,  but  not  of  all. 

TRADE  ACCEPTANCES:  These  instruments  are  recent  in  com- 
mercial enterprises  and  there  is  no  precise  law  yet  devolved.  The 
instrument  is  a  bill  of  exchange,  drawn  to  order,  having  a  definite 
maturity,  and  payable  in  dollars  in  the  United  States.  (Foreign 
trade  acceptances  are  being  developed  by  the  Federal  Reserve  Bank, 
but  are  not  now — 1919 — in  force).  There  are  two  kinds,  personal 
or  bank.  Personal  are  those  signed  by  a  person,  firm  or  corpora- 
tion. They  differ  from  a  promissory  note  because  they  carry  no  in- 
terest, and  can  cover  no  obligation  except  that  arising  from  the  sale 
of  goods. 

The  method  in  use  is  this:  When  a  person  has  sold  and-  delivered 
goods,  wares,  or  merchandise,  he  takes  the  bill  to  the  purchaser,  who 
endorses  across  the  face  his  name  and  date  upon  which  he  will  pay 
the  face  of  the  bill  and  the  word  "accepted."  The  seller  takes  this 
bill,  thus  accepted,  to  his  bank,  which  will  discount  it,  giving  him 
ready  cash  for  it.  The  bank  is  secure,  as  it  has  two  signatures, 
which  it  believes  to  be  financially  responsible,  and  also  because  it 
can  in  turn  discount  this  acceptance  with  the  Federal  Reserve  Bank 
in  its  district. 

The  use  of  trade  acceptance  is  of  great  benefit  to  the  seller  of 
goods,  as  it  makes  his  sales  all  cash  sales,  and  enables  him  to  use 
this  cash,  instead  of  having  accounts  due  in  30,  60  to  90  days — as 
formerly.  From  time  to  time  the  Federal  Reserve  Bank  formulates 
rules  with  regard  to  the  use  of  these  instruments. 

3223.  The  holder  may  refuse  to  take  a  qualified  acceptance,  and 
if  he  does  not  obtain  an  unqualified  acceptance,  he  may  treat  the  bill 
as  dishonored  by  nonacceptance.  Where  a  qualified  acceptance  is 
taken  the  drawer  and  indorsers  are  discharged  from  liability  on  the 
bill,  unless  they  have  expressly  or  impliedly  authorized  the  holder 
to  take  a  qualified  acceptance,  or  subsequently  assent  thereto.  When 
the  drawer  or  an  indorser  receives  notice  of  a  qualified  acceptance, 
he  must,  within  a  reasonable  time,  express  his  dissent  to  the  holder, 
or  he  will  be  deemed  to  have  assented  to  it. 

3224.  Presentment  for  acceptance  must  be  made —  (1)  Where 
the  bill  is  payable  after  sight,  or  in  any  other  case,  where  present- 
ment for  acceptance  is  necessary  in  order  to  fix  the  maturity  of  the 


27G  NKGOTlAiU.K    IXSTKl'MKNTS 


instrument;  or  (2)  Where  the  bill  expressly  stipulates  that  it  shall 
be  presented  for  acceptance;  or  (3)  Where  the  bill  is  drawn  payable 
elsewhere  than  at  the  residence  or  place  of  business  of  the  drawee. 
In  no  other  case  is  presentment  for  acceptance  necessary  in  order 
to  render  any  party  to  the  bill  liable. 

3225.  Except  as  herein  otherwise  provided,  the  holder  of  a  bill 
which  is  required  by  the  next  preceding  section  to  be  presented  for 
acceptance  must  either  present  it  for  acceptance  or  negotiate  it 
within  a  reasonable  time.  If  he  fails  to  do  so,  the  drawer  and  all 
indorsers  are  dischai'ged. 

3226.  Presentment  for  acceptance  must  be  made  by  or  on  be- 
half of  the  holder  at  a  reasonable  hour,  on  a  business  day  and  be- 
fore the  bill  is  overdue,  to  the  drawee  or  some  person,  authorized 
to  accept  or  refuse  acceptance  on  his  behalf;  and — (1)  Where  a  bill 
is  addressed  to  two  or  more  drawees  who  are  not  partners,  present- 
ment must  be  made  to  them  all,  unless  one  has  authority  to  accept 
or  refuse  acceptance  for  all,  in  which  case  presentment  may  be  made 
to  him  only;  (2)  Where  the  drav/ee  is  dead,  presentment  may  be 
made  to  his  personal  representative;  (3)  Where  the  drawee  has  been 
adjudged  a  bankrupt  or  an  insolvent  or  has  made  an  assignment 
for  the  benefit  of  creditors,  presentment  may  be  made  to  him  or  to 
his  trustees  or  assignee. 

3227.  A  bill  may  be  presented  for  acceptance  on  any  day  on 
which  negotiable  instruments  may  be  presented  for  payment  under 
the  provisions  of  sections  three  thousand  one  hundred  fifty-four 
and  three  thousand  one  hundred  sixty-seven.  When  Saturday  is  not 
otherwise  a  holiday,  presentment  for  acceptance  may  be  made  before 
twelve   o'clock,   noon,   on   that  day. 

3228.  Where  the  holder  of  a  bill  drawn  payable  elsewhere  than 
at  the  place  of  business  or  the  residence  of  the  drawee  has  not  time 
with  the  exercise  of  reasonable  diligence  to  present  the  bill  for 
acceptance  before  presenting  it  for  payment  on  the  day  that  it  falls 
due,  the  delay  caused  by  presenting  the  bill  for  acceptance  before 
presenting  it  for  payment  is  excused  and  does  not  discharge  the 
drawers   and    indorsers. 

3229.  Presentment  for  acceptance  is  excused  and  a  bill  may  be 
treated  as  dishonored  by  non-acceptance,  in  either  of  the  following 
cases:  (1)  Where  the  drawee  is  dead,  or  has  absconded,  or  is  a 
fictitious  person  or  a  person  not  having  capacity  to  contract  by  bill; 


NEGOT[AP>LI<:  INSTRIIMKNTS  277 


(2)  Where,  after  the  exercise  of  reasonable  diligence,  presentment 
can  not  be  made;  (3)  Where,  althoui^h  presentment  has  been  irreg- 
ular, acceptance  has  been  refused  on  some  other  ground. 

3230.  A  bill  is  dishonord  by  nonacceptance —  (1)  When  it  is 
duly  presented  for  acceptance  and  such  an  acceptance  as  is  pre- 
scribed by  this  title  is  refused  or  can  not  be  obtained;  or  (2)  When 
presentment  for  acceptance  is  excused  and  the  bill  is  not  accepted. 

3231.  Where  a  bill  is  duly  presented  for  acceptance  and  is  not 
accepted  within  the  prescribed  time  the  person  presenting  it  must 
treat  the  bill  as  dishonored  by  nonacceptance  or  he  loses  the  right 
of  recourse  against  the  drawer  and  indorsers. 

3232.  When  a  bill  is  dishonored  by  nonacceptance,  an  immediate 
right  of  recourse  against  the  drawers  and  indorsers  accrues  to  the 
holder  and  no  presentment  for  payment  is  necessary. 

3233.  Where  a  foreign  bill  appearing  on  its  face  to  be  such  is 
dishonored  by  nonacceptance,  it  must  be  duly  protested  for  nonac- 
ceptance, and  where  such  a  bill  which  has  not  previously  been  dis- 
honored by  nonacceptance  is  dishonored  by  nonpayment,  it  must  be 
duly  protested  for  non-payment.  If  it  is  not  so  protested,  the  drawer 
and  indorsers  are  discharged.  Where  a  bill  does  not  appear  on  its 
face  to  be  a  foreign  bill,  protest  thereof  in  case  of  dishonor  is  un- 
necessary. 

3234.  The  protest  must  be  annexed  to  the  bill,  or  must  contain 
a  copy  thereof  and  must  be  under  the  hand  and  seal  of  the  notary 
making  it,  and  must  specify — (1)  The  time  and  place  of  present- 
ment; (2)  The  fact  that  presentment  was  made  and  the  manner 
thereof;  (3)  The  cause  or  reason  for  protesting  the  bill;  (4)  The 
demand  made  and  the  answer  given,  if  any,  or  the  fact  that  the 
drawer  or  acceptor  could  not  be  found. 

3235.  Protest  may  be  made  by — (1)  A  notary  public;  or  (2)  By 
any  respectable  resident  of  the  place  where  the  bill  is  dishonored, 
in  the  presence  of  two  or  more  credible  witnesses. 

3236.  When  a  bill  is  protested,  such  protest  must  be  made  on  the 
day  of  its  dishonor,  unless  delay  is  excused  as  herein  provided. 
When  a  bill  has  been  duly  noted,  the  protest  may  be  subsequently 
extended  as  of  the  date  of  the  noting. 

3237.  A  bill  must  be  protested  at  the  place  where  it  is  dishonored, 
except  that  when  a  bill  drawn  payable  at  the  place  of  business,  or 
residence  of  some  person  other  than  the  drawee,  has  been  dishonored 


NEGOT 1  ABLE  1N8TKUMENTS 


by  nonacceptance,  it  must  be  protested  for  nonpayment  at  the 
place  where  it  is  expressed  to  be  payable,  and  no  further  present- 
ment for  payment  to,  or  demand  on,  the  drawee  is  necessary. 

3238.  A  bill  which  has  been  protested  for  nonacceptance  may  be 
subsequently  protested  for  non-payment. 

3239.  Where  the  acceptor  has  been  adjudged  a  bankrupt  or  an 
insolvent,  or  has  made  an  assignment  for  the  benefit  of  creditors,  be- 
fore the  bill  matures,  the  holder  may  cause  the  bill  to  be  protested 
for  better  security  against  the  drawer  and  indorsers. 

3240.  Protest  is  dispensed  with  by  any  circumstances  which  would 
dispense  with  notice  of  dishonor.  Delay  in  noting  or  protesting  is 
excused  when  delay  is  caused  by  circumstances  beyond  the  control  of 
the  holder  and  not  imputable  to  his  default,  misconduct  or  negligence. 
When  the  cause  of  delay  ceases  to  operate,  the  bill  must  be  noted 
or  protested  with  reasonable   diligence. 

3241.  When  a  bill  is  lost  or  destroyed  or  is  wronjrly  detained  from 
the  person  entitled  to  hold  it,  protest  may  be  made  on  a  copy  or  writ- 
ten particulars  of  it. 

3242.  Where  a  bill  of  exchange  has  been  protested  for  dishonor 
by  non-acceptance  or  protested  for  better  security,  and  is  not  over- 
due, any  person  not  being  a  party  already  liable  on  it  may,  with  the 
consent  of  the  holder,  intervene  and  accept  the  bill  supra  protest 
for  the  honor  of  any  party  liable  on  it,  or  for  the  honor  of  the  per- 
son for  whose  account  the  bill  is  drawn;  and  where  there  has  been 
an  acceptance  for  honor  for  one  party,  there  may  be  a  further  ac- 
ceptance by  a  different  person  for  the  honor  of  another  party. 

3243.  An  acceptance  for  honor  supra  protest  must  be  in  writing, 
and  indicate  that  it  is  an  acceptance  for  honor,  and  must  be  signed 
by  the  acceptor  for  honor. 

3244.  Where  an  acceptance  for  honor  does  not  expressly  state 
for  whose  honor  it  is  made,  it  is  deemed  to  be  an  acceptance  for 
the   honor  of  the  drawer. 

3245.  The  acceptor  for  honor  is  liable  to  the  holder  and  to  all 
parties  to  the  bill  subsequent  to  the  party  for  whose  honor  he  has 
accepted. 

3246.  The  acceptor  for  honor,  by  such  acceptance  engages  that 
he  will  on  due  presentment  pay  the  bill  according  to  the  terms  of 
his  acceptance;  provided,  it  shall  not  have  been  paid  by  the  drawee; 
and,  provided,  also,  that  it  shall  have  been  duly  presented  for  pay- 


NEGOTIABLE  INSTRUMENTS  279 


ment  and  protested  for  nonpayment  and  notice  of  dishonor  given 
him. 

3247.  Where  a  bill  payable  after  sight  is  accepted  for  honor,  its 
maturity  is  calculated  from  the  date  of  the  noting  for  nonaccept- 
ance  and  not  from  the  date  of  the  acceptance  for  honor. 

3248.  Where  a  dishonored  bill  has  been  accepted  for  honor 
supra  protest  or  contains  a  reference  in  case  of  need,  it  must  be 
protested  for  nonpayment  before  it  is  presented  for  payment  to  the 
acceptor  for  honor  or  referee  in  case  of  need. 

3249.  Presentment  for  payment  to  the  acceptor  for  honor  must 
be  made  as  follows:  (1)  If  it  is  to  be  presented  in  the  place  where 
the  protest  for  nonpajmient  was  made,  it  must  be  presented  not 
later  than  the  day  following  its  maturity;  (2)  If  it  is  to  be  pre- 
sented in  some  other  place  than  the  place  where  it  was  protested, 
then  it  must  be  forwarded  within  the  time  specified  in  section  3186. 

3250.  The  provisions  of  section  3163  apply  where  there  is  delay 
in  making  presentment  to  the  acceptor  for  honor  or  referee  in  case 
of  need. 

3251.  When  the  bill  is  dishonored  by  the  acceptor  for  honor  it 
must  be  protested  for  nonpayment  by  him. 

3252.  Where  a  bill  has  been  protested  for  nonpayment,  any  per- 
son may  intervene  and  pay  it  supra  protest  for  the  honor  of  any 
person  liable  thereon  or  for  the  honor  of  the  person  for  whose  ac- 
count it  was  drawn. 

3253.  The  pasrment  for  honor  supra  protest  in  order  to  operate 
as  such  and  not  as  a  mere  voluntary  payment  must  be  attested  by  a 
notarial  act  of  honor  which  may  be  appended  to  the  protest  or  form 
an  extension  to  it. 

3254.  The  notarial  act  of  honor  must  be  founded  on  a  declaration 
made  by  the  payer  for  honor  or  by  his  agent  in  that  behalf  declaring 
his  intention  to  pay  the  bill  for  honor  and  for  whose  honor  he  pays. 

3255.  Where  two  or  more  persons  offer  to  pay  a  bill  for  the  honor 
of  different  parties,  the  person  whose  payment  will  discharge  most 
parties  to  the  bill  is  to  be  given  preference. 

3256.  Where  a  bill  has  been  paid  for  honor,  all  parties  subse- 
quent to  the  party  for  whose  honor  it  is  paid  are  discharged,  but  the 
payer  for  honor  is  subrogated  for,  and  succeeds  to,  both  the  rights 
and  duties  of  the  holder  as  regards  the  party  for  whose  honor  he 
pays  and  all  parties  liable  to  the  latter. 


280  NEGOTIABLE  INSTRUMENTS 


3257.  Where  the  holder  of  a  bill  refuses  to  receive  payment  supra 
protest,  he  loses  his  right  of  recourse  against  any  party  who  would 
have  been  discharged  by  such  payment. 

3258.  The  payer  for  honor,  on  paying  to  the  holder  the  amount 
of  the  bill  and  the  notarial  expenses  incidental  co  its  dishonor,  is 
entitled  to  receive  both  the  bill  itself  and  the  protest. 

3259.  Where  a  bill  is  drawn  in  a  set,  each  part  of  the  set  being 
numbered  and  containing  a  reference  to  the  other  parts,  the  whole 
of  the  parts  constitutes  one  bill. 

(BILLS  OF  EXCHANGE  IN  SET.) 
TO  MESSRS.  DODSON  &  CO.,  BANKERS,  NEW  YORK. 

A.  Ex.  for  $10,000.  Sacramento,  July  4.  1950. 
At  sight  of  this  first  of  exchange   (second  and  third  un- 
paid), pay  to  the  order  of  DOUGLAS  BRADLEY  &   CO. 
ten   thousand   dollars   in   gold   coin   of   the   United    States. 

Value  received,  and  charge  to  the  account  of 

HUNTLEY  &  MATSON. 

TO  MESSRS.  DODSON  &  CO.,  BANKERS,  NEW  YORK. 

B.  Ex.  for  $10,000.  Sacramento,  July  4,  1950. 
At  sight  of  this  second  of  exchange   (first  and  third  un- 
paid), pay  to  the  order  of  DOUGLAS  BRADLEY  &  CO. 
ten   thousand   dollars   in   gold   coin   of   the   United    States. 

Value  received,  and  charge  to  the  account  of 

HUNTLEY  &  MATSON. 

TO  MESSRS.  DODSON  &  CO.,  BANKERS,  NEW  YORK. 

C.  Ex.   for   $10,000.  Sacramento,   July   4,    1950. 
At  sight  of  this  third  of  exchange   (first  and  second  un- 
paid), pay  to  the  order  of  DOUGLAS  BRADLEY  &  CO. 
ten   thousand   dollars   in  gold   coin   of   the   United   States. 

Value  received,  and  charge  to  the  account  of 

HUNTLEY  &  MATSON. 

3260.  Where  two  or  more  parts  of  a  set  are  negotiated  to  dif- 
ferent holders  in  due  course,  the  holder  whose  title  first  accrues  is 
as  between  such  holders  the  true  owner  of  the  bill.  But  nothing  in 
this  section  affects  the  rights  of  a  person  who  in  due  course  accepts 
or  pays  the  part  first  presented  to  him. 

3261.  Where  the  holder  of  a  set  indorses  two  or  more  parts  to 
different  persons  he  is  liable  on  every  such  part,  and  every  indorser 


NEGOTIABLE  INSTRUMENTS  281 


subsequent  to  him  is  liable  on  the  part  he  has  himself  indorsed,  as 
if  such  parts  were  separate  bills. 

3262.  The  acceptance  may  be  written  on  any  part  and  it  must 
be  written  on  one  part  only.  If  the  drawee  accepts  more  than  one 
part,  and  such  accepted  parts  are  negotiated  to  different  holders  in 
due  course,  he  is  liable  on  every  such  part  as  if  it  were  a  separate 
bill. 

3263.  When  the  acceptor  of  a  bill  drawn  in  a  set  pays  it  without 
requiring  the  part  bearing  his  signature  to  be  delivered  up  to  him, 
and  that  part  at  maturity  is  outstanding  in  the  hands  of  a  holder  in 
due  course,  he  is  liable  to  the  holder  on  it. 

3264.  Except  as  herein  otherwise  provided  where  any  one  part 
of  a  bill  drawn  in  a  set  is  discharged  by  payment  or  otherwise  the 
whole  bill  is  discharged. 

3265.  A  negotiable  promissory  note  within  the  meaning  of  this 
title  is  an  unconditional  promise  in  writing  made  by  one  person  to 
another  signed  by  the  maker  engaging  to  pay  on  demand  or  at  a 
fixed  or  determinable  future  time,  a  sum  certain  in  money  to  order 
or  to  bearer.  Where  a  note  is  drav/n  to  the  maker's  own  order,  it 
is  not  complete  until  indorsed  by  him. 

3265a.  A  check  is  a  bill  of  exchange  drawn  on  a  bank  payable  on 
demand.  Except  as  herein  otherwise  provided,  the  provisions  of 
this  title  applicable  to  a  bill  of  exchange  payable  on  demand  apply 
to  a  check. 

3265b.  A  check  must  be  presented  for  payment  within  a  reason- 
able time  after  its  issue  or  the  drawer  will  be  discharged  from  lia- 
bility on  it  to  the  extent  of  the  loss  caused  by  the  delay. 

If  not  so  presented  the  drawer  is  not  released  from  liability 
unless  he  has  suffered  some  loss  or  injury  by  it,  and  then  only 
to  the  extent  of  the  loss  or  injury  by  it.  If  a  bank  or  banker 
still  remains  in  good  credit  and  is  able  to  pay  the  check  the 
maker  will  still  be  liable  to  pay  it,  notwithstanding  many  months 
may  have  elapsed  since  the  date  of  the  check.  If  the  payee 
of  a  check  neglects  to  present  it  within  the  time  allowed  by 
law,  and  payment  is  refused  because  the  maker  has  withdrawn 
his  funds,  or  stopped  payment,  or  has  insufficient  funds  on  de- 
posit at  that  time,  the  maker  has  suffered  no  loss  because  of  the  de- 
layed presentment,  and  he  will  be  h«ld  liable  to  the  holder  in  an  ac- 
tion to  recover.     But  if  the  holder  neglects  to  make  presentment 


282  Nl'.GOTlABL£  iNlSTKUMKNTS 


within  proper  time,  and  is  unable  to  collect  it  when  he  does  present 
it  because  of  the  failure  of  the  drawee  in  the  meantime,  then  the 
maker  has  actually  suffered  a  loss  because  of  the  holder's  negli- 
gence, and  in  such  case  is  released  from  further  liability  (provided, 
of  course,  the  ch«ck  would  have  been  paid  if  presented  in  proper 
time).  Delay  in  presentment  does  not  discharge  the  liability  of  the 
maker  of  a  check  unless  he  has  sustained  a  loss  thereby.  But  a  dif- 
ferent rule  applies  to  an  indorser.  As  between  the  holder  and  the 
indorser  the  i^le  is  that  the  indorser  is  absolutely  discharged  from 
any  liability  whatsoever  in  case  of  failure  to  make  presentment  in 
due  time.  "The  maker  is  the  one  primarily  liable,  and  prompt  pre- 
sentment and  notice  of  nonpayment  might  enable  the  indorser  to  se- 
cure himself.  The  indorser's  liability  is  conditioned  on  this  being 
done,  and  a  failure  to  do  so  will  discharge  him,  even  though  present- 
ment in  due  course  would  have  been  unavailing.  In  default  of 
proper  presentment  and  notice  an  indorser  can  be  charged  only  by 
proof  that  he  knew  when  he  passed  the  check  that  there  were  or 
would  be  no  funds  in  bank  to  meet  it."     See  3266b. 

3265c.  Where  a  check  is  certified  by  the  bank  on  which  it  is 
drawn,  the  certification  is  equivalent  to  an  acceptance. 

3265d.  Where  the  holder  of  a  check  procures  it  to  be  accepted 
or  certified  the  drawer  and  all  indorsers  arc  discharged  from  liabil- 
ity  on   it. 

3265e.  A  check  of  itself  does  not  operate  as  an  assignment  of  any 
part  of  the  funds  to  the  credit  of  the  drawer  with  the  bank,  and  the 
bank  is  not  liable  to  the  holder,  unless  and  until  it  accepts  or  certi- 
fies the  check. 

The  implied  contract  of  the  bank  is  to  honor  the  checks  of  its 
depositor  when  he  has  sufficient  asset  in  its  hands.  If  it  does  not 
fulfill  its  contract  by  promptly  paying  such  checks  on  presentment 
then  it  is  liable  to  the  depositor  and  not  to  the  holder.  If  the  holder 
has  a  grievance  because  of  the  bank's  refusal  to  pay,  it  is  against  the 
drawer  of  the  check  and  not  against  the  bank. 

3266a.  The  person  "primarily"  liable  on  an  instrument  is  the 
person  who  by  the  terms  of  the  instrument  is  absolutely  required  to 
pay  the  same.    All  other  parties  are  "secondarily"  liable. 

3266b.  In  determining  what  is  a  "reasonable  time"  or  an  "un- 
reasonable time,"  regard  is  to  be  had  to  the  nature  of  the  instru- 


NEGOTIABLE   INSTRUMENTS  283 


ment,  the  usage  of  trade  or  business  (if  any)  with  respect  to  such 
instruments,  and  the  facts  of  the  particular  case. 

The  question  whether  a  bill,  note  or  check  be  presented  for  pay- 
ment within  a  "reasonable  time"  is  a  question  of  law  for  the  court 
after  the  facts  are  ascertained.  It  may  vary  according  to 
the  particular  circumstances  of  each  case.  As  a  general  principle 
"due  diligence"  must  be  exercised  in  the  deposit  of  checks  or  the 
prompt  demand  for  payment  of  negotiable  paper,  else  neglect  may 
result  in  the  discharge  from  liability  of  the  drawee. 

The  interpretation  of  these  provisions  is  left  to  the  discretion  of 
the  court.  It  may  be  set  down  as  a  general  proposition  that  action 
looking  to  presentment  and  collection  should  be  taken  within  twenty- 
four  hours  from  receipt  of  the  instrviment.  There  is,  however,  a 
stipulation  (see  section  3152),  making  an  exception  in  favor  of  a 
check,  to  the  effect  that  presentment  vnll  be  sufficient  if  made  within 
a  reasonable  time  after  the  last  negotiation  of  it.  Where  a  check  or 
bill  of  exchange  payable  on  demand  is  promptly  presented  after  its 
last  negotiation  the  time  between  the  issue  of  the  instrument  and 
the  last  negotiation  does  not  enter  into  the  computation  at  all. 
See  3265b. 

3266c.  Where  the  day,  or  the  last  day,  for  doing  any  act  herein 
required  or  permitted  to  be  done  falls  on  Sunday  or  on  a  holiday,  the 
act  may  be  done  on  the  next  succeeding  secular  or  business  day, 

3266d.  The  provisions  of  this  title  do  not  apply  to  negotiable  in- 
struments made  and  delivered  prior  to  the  taking  effect  of  it.  In 
any  case  not  provided  for  in  this  title  the  rviles  of  law  and  equity 
including  the  law  merchant  shall  govern. 

By  the  "Law  Merchant"  is  meant  the  rules  and  customs  of  mer- 
chants relating  to  bills  and  notes.  Many  of  these  customs  are  cen- 
turies old,  in  the  course  of  time  having  been  given  recognition  and 
adopted  as  the  common  law  relating  to  negotiable  instruments 
throughout  the  civilized  world;  and  while  at  the  present  time  most 
of  the  states  have  negotiable  instrument  codes,  they  for  the  most 
part  are  but  statutory  enactments  of  the  well  recognized  rules  of 
the  Law  Merchant,  and  must  be  interpreted,  when  not  otherwise 
provided  by  express  statutory  enactment,  by  its  well  settled  and  es- 
tablished  principles. 

Negotiability:  See  Negotiable  Instruments,  113082,  3083,  3111, 
3112,  3128.  3131,  3133,  3134,  3136, 


284  NUISANCE 


Net  Conlainer  Act  is  designed  to  protect  purchasers  of  any  com- 
modity within  its  provisions,  opainst  deception  as  to  the  quantity  or 
amount  of  the  commodity  purchased,  and  as  aprainst  the  seller  shall 
be  strictly  construed  with  a  view  to  effect  its  objects. 

The  act  is  intended  to  apply  to  foodstuffs  and  stuff  intended  to  be 
used  or  prepared  for  use  as  food  for  human  bein!?.s  (see  Commercial 
Feeding  Stuffs),  whether  to  be  eaten  or  drunk — but  does  not  apply 
to  a  commodity  intended  to  be  used  wholly  for  medicinal  purposes. 
Whenever  any  of  these  commodities  are  offered  or  exposed  for 
sale,  in  containers,  the  net  quantity  of  the  contents  of  the  container 
shall  be  plainly  and  conspicuously  marked,  branded  or  otherv/ise 
indicated  upon  the  outside  or  on  (op,  as  a  label  or  tag  attached  to  it. 
The  designation  used  shall  be  such  as  is  most  feasible  and  suitable 
to  the  character  of  the  commodity,  or — if  there  is  a  trade  custom  as 
to  the  measure  or  the  quantity  of  that  particular  commodity — the 
designation  shall  be  in  accordance  with  the  custom. 

This  act  does  not  apply  (1)  when  the  sale  of  a  commodity  is 
made  from  bulk,  and  the  quantity  is  measured,  weighed  or  counted 
for  the  immediate  purpose  of  such  sale;  (2)  to  the  sale  of  any  con- 
tainer of  an  ornamental  or  symbolic  character  with  which  a  quantity 
of  some  commodity  is  sold  as  merely  incidental;  (3)  to  the  sale  of  a 
commodity  which  is  sold  for  less  than  eleven  cents  at  retail. 
Noncupativc  Wills:  See  Wills. 
Non-Suit:      See    Actions. 

Note:  See  Negotiable  Instruments,  Ti3083,  3183,  3205,  3211, 
3265,  3170. 

Notice  includes  all  papers  and  orders  (except  Process)  re- 
quired to  be  served  in  any  proceeding  before  any  court,  board  or 
officer,  or  when  required  by  law  to  be  served  independently  of  such 
proceeding.      See  Negotiable  Instruments,  113137,  3175   to   3198. 

Nuisance  is  anything  v.?hich  is  injurious  to  health,  or  is  indecent 
or  offensive  to  the  senses,  or  an  obstruction  to  the  free  use  of  prop- 
erty, so  as  to  interfere  with  the  comfortable  enjoyment  of  life  or 
property,  or  unlawfully  obstruct  the  free  passage  or  use,  in  the  cus- 
tomary manner,  of  any  navigable  lake,  river,  bay,  stream,  canal  or 
basin,  or  any  public  park,  square,  street  or  highway.  It  is  a  pub- 
lic nuisance  if  it  affects  at  the  same  time  an  entire  community  or 
neighborhood,  or  any  considerable  number  of  persons,  although  the 


OPTION  285 


extent  of  the  annoyance  or  damage  inflicted  upon  individuals  may 
be  unequal.     Every  other  nuisance  is  private. 

Nothing  which  is  done  or  maintained  by  or  under  the  express  au- 
thority of  a  statute  can  be  deemed  a  nuisance. 

Every  successive  owner  of  property  who  neglects  to  abate  a  con- 
tinuing nuisance  upon  or  in  the  use  of  such  property,  created  by  a 
former  owner,  is  liable  in  the  same  manner  as  the  one  who  first 
created  it.  The  abatement  of  a  nuisance  does  not  prejudice  the  right 
of  any  person  to  recover  damages  for  its  past  existence.  A  person 
injured  by  a  private  nuisance  may  abate  it  by  removing  (or  if  neces- 
sary), destroying  the  thing  which  constitutes  the  nuisance,  without 
committing  a  breach  of  the  peace,  or  doing  unnecessary  injury.  When 
a  private  nuisance  results  from  the  mere  omission  of  the  Avrongdoer 
and  cannot  be  abated  without  entering  upon  his  land,  reasonable 
notice  must  be  given  to  him  before  entering  to  abate  it. 

Oil  Claims:     See  Mining  Law. 

An  Option  is  a  contract,  by  which  the  owner  of  property  agrees 
with  another  person  that  he  shall  have  the  right  to  purchase  that 
property  at  a  fixed  price,  within  a  certain  time.  Such  a  grant  con- 
stitutes the  grantee  the  equitable  owner  of  an  interest  in  the 
propertj'.  It  vests  in  him  the  right  or  privilege  of  acquiring  an 
interest  in  the  land  and,  when  accepted,  entitles  him  to  call  for 
specific  performance.  When  this  right  is  exercised,  it  relates  back 
to  the  time  of  giving  the  option,  so  as  to  cut  off  intervening 
rights  acquired  with  knowledge  of  its  existence — even  to  one  who 
has  filed  a  Homestead  in  the  meantime. 

Sometimes  the  owner  of  real  property  gives  an  agent  some  writ- 
ing concerning  the  property — an  option,  an  agency  agreement,  or 
an  order.  The  agent  causes  this  writing  to  be  placed  of  record 
in  the  county  where  the  property  is  located,  thus  creating  a  cloud 
upon  the  title.  Title  companies  will  not  approve  the  title  unless 
this  cloud  is  removed.  This  will  require  a  suit  to  quiet  title  un- 
less the  agent  is  paid  some  bonus  for  a  quit  claim  deed.  This  is 
what  he  was  looking  for.  In  order  to  prevent  just  such  practices 
upon  the  part  of  any  person,  I  believe  that  the  following  clause 
inserted  in  any  such  writing  would  be  sufficient:  "It  is  particularly 
agreed  that  this  instrument  shall  not  be  recorded,  and  that  if  it  is 
recorded  by  any  person,  or  for  any  reason,  it  shall  at  once  become 


286  PARTNERSHIP 


null  and  void,  and  all  of  the  parties  hereto  shall  immediately  be 
released  from  any  obligation  to  carry  out  any  of  its  terms." 

Oral:  By  word  of  mouth;  parol.  See  Contracts,  Statute  of 
Frauds;  Statute  of  Limitations;  Warranty. 

Outlaw.     See  Limitations,  Statute  of. 

Owner.    See  Real  Estate;  Warehouse  Receipts. 

Par  Value  means  face  value,  not  its  intrinsic  value.  See  Cor- 
poration. 

Partnership:  See  Liens;  Mining-  Partnership;  Monopoly;  Trusts; 
Ships;  Real  Estate  Agents;  Negotiable  Instruments,  113158,  3159, 
3180,  3181,  3209.  Partnership  is  the  association  of  two  or  more 
persons,  for  the  purpose  of  carrying  on  business  together,  and  di- 
viding its  profits  between  them.  It  can  be  formed  only  by  the  con- 
sent of  all  the  parties  to  it,  and  therefore  no  new  partner  can  be 
admitted  into  a  partnership  without  the  consent  of  every  existing 
member  of  it.  It  may  be  determined  either  by  some  written  agree- 
ment, or  by  acts  of  the  persons.  The  following  acts  have  been  de- 
cided by  our  Supreme  Court  not  to  be  partnerships;  a  lease  of  farm- 
land with  share  of  the  crop;  lease  of  a  threshing  machine,  for  portion 
of  the  net  profits;  John  buys  goods  with  money  belonging  to  Jack 
and  Harry,  and  the  profits  are  divided  equally;  real  estate  agent 
agreement  to  sell  subdivided  land  for  a  percentage  of  the  profits; 
leasing  the  entire  property  of  a  corporation  at  a  sum  equal  to  25 
per  cent,  of  the  net  profits  of  the  business.  The  property  of  a  part- 
nership consists  of  all  that  is  contributed  to  the  common  stock  at 
the  formation  of  the  partnership,  and  all  that  is  subsequently  ac- 
quired by  it.  The  interest  of  each  member  of  a  partnership  ex- 
tends to  every  portion  of  its  property. 

In  the  absence  of  any  agreement  on  the  subject  the  shares  of 
partners  in  the  profit  or  loss  of  the  business  are  equal,  and  the  share 
of  each  in  the  partnership  property  is  the  value  of  his  original  con- 
tribution increased  or  diminished  by  his  shares  of  profit  or  loss.  An 
agreement  to  divide  the  profits  of  a  business  implies  an  agreement 
for  a  corresponding  division  of  its  losses,  unless  it  is  otherwise  ex- 
pressly stipulated.  Property,  whether  real  or  personal,  acquired 
with  partnership  funds,  is  presumed  to  be  partnership  property.  The 
relations  of  partners  are  confidential.  They  are  trustees  for  each 
other  within   the  meaning  of  trusts,   and  their  obligations  as  such 


PAYMENT  287 


trustees  are  defined  there.  In  all  proceedings  connected  with  the 
formation  conduct,  dissolution,  and  liquidation  of  a  partnership, 
every  partner  is  bound  to  act  in  the  highest  good  faith  toward  his 
copartners.  He  may  not  obtain  any  advantage  over  them  in  the 
partnership  affairs  by  the  slightest  misrepresentation,  concealment, 
threat,  or  adverse  pressure  of  any  kind.  Each  member  of  a  part- 
nership must  account  to  it  for  everything  that  he  receives  on  account 
of  it,  and  is  entitled  to  reimbursement  therefrom  for  everything  thai 
he  properly  expends  for  the  benefit  of  it,  and  to  be  indemnified 
thereby  for  all  losses  and  risks  which  he  necessarily  incurs  on  its 
behalf.  Partners  may  (upon  or  in  anticipation  of  a  dissolution  of  the 
partnership),  agree  that  none  of  them  will  carry  on  a  similar  busi- 
ness within  the  same  city  or  town  where  the  partnership  business  has 
been  transacted,  or  within  a  specified  part  of  it.     See  Good  WilL 

Special  partnerships  may  be  formed,  by  which  one  party  con- 
tributes nothing  except  money,  and  has  nothing  to  say  about  how 
the  business  is  to  be  carried  on.  He  is  liable  only  to  the  amount 
of  his  cash  invested,  provided  he  files  a  certificate  stating  his 
name,  address,  the  name,  kind  and  address  of  the  business,  and 
the  amount  of  actual  cash  contributed  by  him. 

A  partner  may  embezzle  partnership  property  or  money. 

Partition:  When  a  lien  is  on  an  undivided  interest  or  estate  of  any 
of  the  parties,  such  lien,  if  a  partition  be  made,  shall  thenceforth  be 
a  charge  only  upon  the  share  assigned  to  such  party;  but  such  share 
must  first  be  charged  with  its  just  proportion  of  the  partition  ,in 
preference  to  such  lien. 

Party  Wall:     See  Real  Estate,  1118. 

Pasturing  Lien:      See  Liens. 

Pasturing  Stock,  Lien  for:      See  Liens. 

Payment:  See  Check;  Accord  and  Satisfaction;  Sales;  Title;  Pay- 
ment under  Protest;  Negotiable  Instruments,  1|3169,  S264,  3153, 
3154. 

Payment  of  Honor:  See  Negotiable  Instruments,  T|3252  and  fol- 
lowing. 

Payment  under  Protest:  The  general  rule  is  that  if  a  person 
knowingly  submits  to  an  illegal  demand  and  pays  what  is  demanded, 
he  will  be  considered  to  have  paid  the  amount  voluntarily,  unless  he 
invokes  the  remedy  which  the  law  affords  against  such  demand, 
to  be  paid  under  compulsion,  if  the  demand  was  unlavirful.     Such 


288  PERSONAL  PROPERTY 


money  caji  be  recovered  back,  if  the  delay  required  to  secure  the 
property  by  legal  process  would  result  in  serious  loss  to  its  owner. 
This  rule  is  subject  to  the  qualification;  that  if  a  person  obtains 
possession  of  the  property  of  another  without  first  beginning  legal 
proceeding  for  that  purpose,  money  paid  to  him  will  be  considered 
paid  under  protest. 

Payee:     See  Negotiable  Instruments,  ^3143,  3149. 

Perishable   Property:       See   Actions, 

Personal  Property:  See  Bailments;  Deposit  of  Personal  Property; 
Sales;  Storage;  Warehousemen;  Findings;  Liens;  Warranty;  Hiring; 
Crops;  Stoppage  in  Transit;  Title;  Exemption;  Pledge;  Chattel 
Mortgages;  Transfers;  Bulk  Law;  Statute  of  Frauds;  Accession; 
Consignment.  Includes  money,  chattels,  goods,  things  in  action  and 
evidence  of  debt.  It  is  in  law  designated  by  the  word  "chattels." 
There  are  "chattels  real"  and  "chattels  personal."  Chattels  real 
are  estates  in  land,  less  than  a  title  in  fee,  such  as  a  lease,  or  an  ease- 
ment. Chattels  personal  include  all  other  forms  of  personal  prop- 
erty, and  will  be  more  particularly  considered  here.  By  law  these 
are  again  divided  into  two  classes:  (1)  Choses  in  possession  and  (2) 
choses  in  action.  The  former  is  one  of  which  the  owner  has  the 
present  possession  and  control — such  as  merchandise  which  he  has 
bought.  The  latter  is  when  property  belonging  to  an  owner  is  being 
kept  from  him — such  as  a  horse  which  is  stolen,  or  money  which  is 
unpaid  upon  a  debt,  or  damages  to  which  he  is  entitled  for  injury 
to  his  person  or  possessions. 

Titles  to  personal  property  may  be  acquired  in  one  of  four  ways: 
(A)  By  legal  process,  or  (B)  by  the  parties  themselves,  or  (C)  by 
operation  of  law,  or  (D)  by  original  acquisition.  (A)  Title  to  per- 
sonal property  when  acquired  by  legal  process,  is  by  execution  or  by 
judicial  decree.  See  titles  to  real  property,  where  these  means 
have  been  considered.  (B)  Title  may  be  passed  by  the  parties  them- 
selves, by  (1)  gift,  (2)  by  contractural  relations,  or  by  (3)  devise. 
(1)  Gifts  are  of  two  kinds;  intervivos  and  causa  mortis.  A  gift  is 
a  free  transfer  of  personal  property,  but  it  must  be  accompanied 
by  delivery — otherwise  it  may  be  considered  to  be  in  fraud  of  cred- 
itors, or  relations.  See  Delivery,  under  Real  Estate;  Statute  of 
Frauds.  Inter  vivos  means  "during  life,"  and  the  death  of  the  giver 
makes  no  difference.  "Causa  mortis,"  in  the  other  hand,  means  "in 
view  of  death,"  and  refers  to  a  gift  when  the  giver  expects  to  die, 


PERSONS  -«9 


and  wishes  to  .see  that  his  wishes  regarding  certain  of  hir,  proprrty 
are  carried  out  before  h«  dies,  to  his  satisfaction ;  but  it  is  revoked 
by  operation  of  law  if  the  giver  does  not  die.  A  verbal  gift  is  not 
valid,  unless  the  means  of  obtaining  possession  and  control  of  the 
thing  are  given  also;  nor,  if  it  is  capable  of  delivery,  unless  there 
is  an  actual  or  sjTnbolical  delivery  of  the  thing  to  the  person  to 
whom  it  is  given.  Otherwise  it  must  be  in  Avriting.  A  gift  in  view 
of  death  is  not  affected  by  a  previous  will;  nor  by  a  subsequent  will, 
unless  it  expresses  an  intention  to  revoke  the  gift.  It  must  be  treated 
as  a  legacy  only  so  far  as  relates  to  the  creditors  of  the  giver.  That 
is,  upon  deficiency  of  assets  to  pay  Iav:ful  claims  of  creditors,  any 
gift  in  view  of  death  must  give  v^ay,  so  far  as  it  may  be  needed  to 
discharge  such  lawful  claims.  (2)  Title  by  contract  is  such  as  one 
gets  by  an  agreement  of  the  parties — as  a  purchase  and  sale.  (C) 
Title  by  operation  of  law  is  (1)  marriage,  such  as  is  acquired  by 
reason  of  the  community  interest  of  either  spouse  (see  Community 
Propei-ty;  Husband  and  Wife);  (2)  by  Succession  and  (3)  by  for- 
feiture, as  where  a  purchaser  loses  his  interest  in  an  article  pur- 
chased when  he  fails  to  comply  with  some  of  the  terms  on  which  he 
bought  it.  See  Installment  Sales;  Conditional  Sales.  (D)  When  one 
acquires  title  in  its  original  inception,  he  does  so  in  one  of  three 
ways:  (3)  By  creation — as  v/here  he  makes  the  thing  itself,  as  an 
inventor,  or  products  of  the  mind  (which  see);  (2)  by  Accession 
(which  see)  and  (3)  by  occupancy,  such  as  one  might  gain  when 
there  was  no  ov/ner  of  the  property  before — as  in  wild  animals  or 
sea  drift^ — or  from  findings  (which  see).  When  is  the  precise  moment 
when  the  title  passes  to  personal  property  is  often  a  most  serious 
question.  It  passes  the  instant  a  suit  is  filed  for  the  purchase  price 
of  goods  sold  on  installments,  or  the  balance  of  the  purchase  price 
of  any  chattei.  See  Stoppage  in  Transit — Vendors'  Lien;  Actions; 
Title;  Consignment;  Negotiable  Instruments,  ^3136. 

Personal  Relations:     See  Citizens;  Arrest;  Husband  and  Wife. 

Persons:  The  persons  to  whom  property  is  transferred  must  be 
either  natural,  or  artificial  (such  as  a  corporation),  capable  of 
taking  and  holding  the  property.  The  Supreme  Court  has  held 
that  the  following  names  Avere  not  persons:  "Hibernia  Company," 
"The  Community  styling  itself  Roman  Catholic  St.  Bonifacieus 
Church  Community;"  and  that  property  conveyed  "to  W.  W. 
Phelps  &  Co."  conveyed  title  only  to  Phelps,  though  he  had  other 


290  PLEDGE 


partners.  An  heir  apparent  who  gives  a  deed  to  property  which  he 
expects  to  inherit  cannot  pass  a  title  either  past  or  future  before 
the  death  of  the  person  who  then  owns  the  property. 

Petroleum:      See    Mining   Law. 

Physician:  A  physician  is  supposed  to  have  that  reasonable  degree  of 
skill  and  learning  possessed  by  others  of  his  profession,  and  to 
agree  with  the  patient  that  he  will  use  reasonable  and  ordinary  care 
and  skill  in  the  application  of  such  knowledge  to  accomplish  the 
purpose  for  which  he  was  employed;  if  he  does  this,  he  is  not 
liable  for  the  results  which  follow. 

No  presumption  arises  from  the  fact  that  the  patient  did  not 
recover,  that  the  physician  did  not  exercise  the  proper  skill  and 
attention;  he  is  not  a  warrantor  of  cures. 

To  constitute  negligence  on  his  part,  it  must  be  shown  that  he 
did  something  which  he  should  not  have  done,  or  that  he  did  not 
do  something  which  he  should  have  done.      (See  Privilege.) 

Pipe  Line:     See  Real  Estate;  Oil;  Mines. 

Pledge:  See  Personal  Property;  Mortgage;  Chattel  Mortgage; 
Trust  Deed;  Trustee;  Warehouse  Receipts;  Dejtosits;  Loans.  A 
pledge  is  a  deposit  of  personal  property  by  way  of  security  for  the 
performance  of  another  act.  Every  contract  by  which  the  posses- 
sion of  personal  property  is  transferred,  as  security  only,  is  to  be 
deemed  a  pledge.  The  lien  of  a  pledge  is  dependent  on  possession, 
and  no  pledge  is  valid  until  the  property  pledged  is  delivered  to  the 
pledgee,  or  to  a  pledge-holder  as  hereafter  prescribed.  The  increase 
of  property  pledged  is  pledged  with  the  property.  One  who  has  a  lien 
upon  property  may  pledge  it  to  the  extent  of  his  lien.  One  who  has 
allowed  another  to  assume  the  apparent  ownership  of  property  for 
the  purpose  of  making  any  transfer  of  it,  cannot  set  up  his  own  title, 
to  defeat  a  pledge  of  the  property,  made  by  the  other,  to  a  pledgee 
who  received  the  property  in  good  faith,  in  the  ordinary  course  of 
business  and  for  value.  Property  may  be  pledged  as  security  for 
the  obligation  of  another  person  than  the  owner,  and  in  so  doing  the 
owner  has  all  the  rights  of  a  pledger  for  himself,  except  as  herein- 
after stated. 

A  pledgor  and  pledgee  may  agree  upon  a  third  person  with  whom 
to  deposit  the  property  pledged,  who,  if  he  accepts  the  deposit,  is 
called  a  pledge-holder.  One  who  pledges  property  as  security  for 
the   obligration   of   another,   cannot  withdraw   the    property   pledged 


PLEDGE  291 


otherwise  than  as  a  pledgeor  for  himself  might,  and  if  he  receives 
from  the  debtor  a  consideration  for  the  pledge  he  cannot  withdraw 
it  without  his  consent.  A  pledge  holder  for  reward  cannot  exon- 
erate himself  from  his  undertaking;  and  a  gratuitous  pledge  holder 
can  do  so  only  by  giving  reasonable  notice  to  the  pledgeor  and 
pledgee  to  appoint  a  new  pledge  holder,  and  in  case  of  their  failure 
to  agree,  by  depositing  the  property  pledged  with  some  impartial 
person,  who  will  then  be  entitled  to  a  reasonable  compensation  for 
his  care  of  it.  A  pledge  holder  must  enforce  all  the  rights  of  the 
pledgee,  unlcs.s  authorized  by  him  to  Avaivc  them.  A  pledgee,  or  a 
pledge-holder  for  reward,  assumes  the  duties  and  liabilities  of  a 
depositary  for  reward.  A  gratuitous  pledge-holder  assumes  the 
duties  and  liabilities  of  a  gratuitous  depositary. 

Where  a  debtor  has  obtained  credit,  or  an  extension  of  time,  by 
a  fraudulent  misrepresentation  of  the  value  of  property  pledged  by 
or  for  him — the  creditor  may  demand  a  further  pledge  to  correspond 
with  the  value  represented;  and  in  default  of  it  may  recover  his 
debt  immediately,  though  it  be  not  actually  due.  When  performance 
of  the  act  for  which  a  pledge  is  given  is  due  (in  whole  or  in  part), 
the  pledgee  may  collect  what  is  due  to  him  by  a  sale  of  property 
pledged,  subject  to  the  rules  and  exceptions  hereinafter  prescribed. 
Before  property  pledged  can  be  sold  (and  after  performance  of  the 
act  for  which  it  is  security  is  due),  the  pledgee  must  demand  per- 
formance from  the  debtor,  if  the  debtor  can  be  found.  A  pledgee 
must  give  actual  notices  to  the  pledgeor  of  the  time  and  place  at 
which  the  proper1.y  pledged  v/ill  be  sold,  at  such  a  reasonable  time 
before  the  sale  as  will  enable  the  pledger  to  attend,  if  he  wishes. 
Notice  of  sale  may  be  waived  by  a  pledgeor  at  any  time,  but  is  not 
waived  by  a  mere  waiver  of  demand  of  performance.  A  debtor  or 
pledgeor  waives  a  demand  of  performance  as  a  condition  precedent 
to  a  sale  of  the  property  pledged  by  a  positive  refusal  to  perform 
after  performance  is  due;  but  cannot  waive  it  in  any  other  manner 
except  by  contract. 

The  sale  by  pledgee,  of  property  pledged,  must  be  made  by  pub- 
lic auction  in  the  manner  and  upon  the  notice  of  sale  of  personal 
property  under  execution.  A  pledgee  cannot  sell  any  evidence  of 
debt  pledged  to  him,  except  the  obligations  of  government,  states, 
or  corporations;  but  he  may  collect  the  same  when  due.  Whenever 
property  pledged   can   be   sold   for  a  price   sufficient  to   satisfy   the 


292  POWER  OF  ATTORNEY 


claim  of  the  pledgee,  the  pledgeor  may  require  it  to  be  sold,  and 
its  proceeds  to  be  applied  to  such  satisfaction,  when  due.  After  a 
pledgee  has  lawfully  sold  property  pledged  (or  otherwise  collected 
its  proceeds),  he  may  deduct  from  it  the  amount  due  under  the  prin- 
cipal obligation,  and  the  necessary  expenses  of  sale  and  collection, 
and  must  pay  the  surplus  to  the  pledgeor,  on  demand.  When  prop- 
erty pledged  is  sold  by  order  of  the  pledgeor  before  the  claim  of 
the  pledgee  is  due,  the  latter  may  retain  out  of  the  proceeds  what 
can  possibly  become  due  under  his  claim  until  it  becomes  due.  When- 
ever property  pledged  is  sold  at  public  auction,  in  the  manner  pro- 
vided, the  pledgee  or  pledge-holder  may  purchase  said  property  at 
such  sale.  Instead  of  selling  property  pledged,  as  hereinbefore  pro- 
vided, a  pledgee  may  foreclose  the  right  of  redemption  by  a  judicial 
sale,  under  the  direction  of  a  competent  court;  and  in  that  case 
may  be  authorized  by  the  court  to  purchase  at  the  sale. 

Plumbers:  Every  master  or  journeyman  plumber  must  register 
his  name  at  the  health  office  in  the  city  or  county  where  he  car- 
ries on  his  business;  and  no  person  shall  carry  on  the  business  of  a 
plumber  unless  so  registered,  and  unle.ss  he  shall  first  have  obtained 
a  license  from  the  Board  of  Health. 
Policy:     See  Insurance. 

Poll  Tax:  There  is  no  poll  tax  levied  in  this  state,  but  the  1919 
legislature  passed  an  act  assessing  a  poll  tax  of  $4  against  each 
adult,  which  act  is  to  be  voted  upon  by  the  people  at  the  next 
general  election  (1920). 

Possession:     See  Real  Estate. 

Power  of  Attorney:  A  power  of  attorney  is  an  authority  given 
by  one  person  to  another  to  transact  business  for  him  and  in  his 
name.  The  extent  of  the  authority  is  limited,  of  course,  by  the 
language  of  the  instrument.  It  may  be  general  to  transact  all 
business,  or  special,  to  do  a  certain  thing.  The  person  to  whom 
such  an  authority  is  given  is  called  an  "attorney  in  fact." 

The  owner  of  real  property  may  authorize  another  person  to  find 
a  purchaser  for  it,  and  execute  a  contract  of  sale  thereof,  by  any 
form  of  simple  writing,  but  he  can  confer  authority  to  make  the 
actual  conveyance  for  and  in  his  name  only  by  means  of  a  written 
power  of  attorney.  The  person  named  in  the  instrument  then  has 
power  to  do  any  lawful  act  which  his  principal  could  do,  and  it 
will  be  binding  upon  the  principal  with  as  full  force  and  eri'ect  as 


XAAJ^ 


PRIVILEGED  COMMUNICATION  293 


if  clone  by  the  principal  himself.  When  an  attorney  in  fact  exe- 
cutes an  instrument  conveying  any  estate  in  real  property  he  must, 
however,  first  subscribe  the  name  of  his  principal  to  the  instrument, 
follow^ed  by  his  own  name  as  attorney  in  fact. 

Every  power  of  attorney  must  be  in  writing.  It  cannot  be  given 
verbally  under  any  circumstances. 

A  married  woman  may  make,  execute  and  revoke  powers  of  at- 
torney for  the  sale,  conveyance  or  incumbrance  of  her  real  or  per- 
sonal estate,  which  shall  have  the  same  eifect  as  if  she  were  un- 
married, and  may  be  acknowledged  in  the  same  manner  as  a 
grant  of  real  property. 

A  power  of  attorney  to  transfer  real  property  must  be  executed, 
acknowledged  and  recorded,  before  the  grant  is,  in  order  to  make 
the  conveyance  valid,  and  also  to  keep  the  chain  of  title  perfect  and 
in  proper  sequence.  Otherwise  there  would  be  no  public  evidence 
of  the  right  of  the  attorney  in  fact  to  make  the  transfer. 

Whenever,  by  reason  of  the  sale  of  the  property  by  the  owner 
himself,  or  for  any  other  valid  reason,  it  is  desired  to  revoke  a 
power  of  attorney,  the  only  manner  in  which  it  can  be  done  is  by 
another  instrument  formally  withdrawing  or  revoking  such  power, 
which  must  also  be  acknowledged  and  recorded  in  the  same  county 
recorder's  office  in  which  the  instrument  containing  the  power  of 
attorney  was  recorded.  This  is  a  very  important  matter,  which 
should  always  be  attended  to  promptly  when  the  occasion  for  it 
arises;  for  until  it  is  done  the  authority  of  the  attorney  in  fact 
remains  in  full  force  and  effect,  which  might  lead  to  serious  com- 
plications if  the  property  had  been  otherwise  disposed  of  without 
his  knowledge. 

Prima  Facie:  On  its  face;  apparently.  See  Negotiable  Instru- 
ments, 113092,  3095,  3105,  3123,  3140. 

Presentment:  See  Negotiable  Instruments,  113151,  3152,  3192, 
3202,  3214,  3217,  3224,  3225,  3226,  3229,  3234,  3237,  3249,  3250, 
3265b. 

Principal  and  Agent:  See  Negotiable  Instruments,  113100,  3101, 
3102,  3103;  Master  and  Servant;  Employer  and  Employee;  Agent; 
Factor;  Real  Estate. 

Privileged  Communication:      See   Slander. 

PRIVILEGED  COMMUNICATION:  A  privileged  communication 
is  one  which  cannot  be  made  a  basis  either  for  slander  or  libel,  and 


294  PRIVILEGED  COMMUNICATION 


includes  statements  made  (1)  in  the  proper  discharge  of  an  official 
duty;  (2)  in  any  legislative  or  judicial  proceeding,  or  in  any  pro- 
ceeding authorized  by  law;  (3)  in  a  communication  without  malice, 
to  a  person  interested  therein,  (a)  by  one  who  is  also  interested, 
(b)  or  by  one  who  stands  in  such  relation  to  the  person  interested 
as  to  afford  a  reasonable  ground  for  supposing  the  motive  for  the 
communication  innocent,  or  (c)  who  is  requested  by  the  person 
interested  to  give  the  informaton,  (d)  by  a  fair  and  true  report, 
without  malice,  in  a  public  journal,  or  a  judicial,  legislative,  or 
other  public  official  proceeding,  or  of  anything  said  in  the  course 
of  it,  or  of  a  verified  charge  or  complaint  made  by  any  person  to  a 
public  official,  upon  which  complaint  a  warrant  shall  have  been 
issued,  (e)  by  a  fair  and  true  report,  without  malice,  of  the  pro- 
ceedings of  a  public  meeting,  if  such  meeting  was  lawfully  con- 
vened for  a  lawful  purpose  and  open  to  the  public,  or  the  publica- 
tion of  the  matter  complained  of  was  for  the  public  benefit.  In  the 
cases  described  in  c,  d  and  e,  malice  is  not  presumed. 

There  are  particular  relations  in  which  it  is  the  policy  of  the 
law  to  encourage  confidence  and  to  preserve  it  inviolate;  therefore, 
a  person  cannot  be  examined  as  a  witness  in  the  following  cases: 

1.  A  husband  cannot  be  examined  for  or  against  his  wife  with- 
out her  consent;  nor  a  wife  for  or  against  her  husband,  without 
his  consent;  nor  can  either,  during  the  marriage  or  afterwards,  be, 
without  the  consent  of  the  other,  examined  as  to  any  communica- 
tion made  by  one  to  the  other  during  the  marriage;  but  this  ex- 
ception does  not  apply  to  a  civil  action  or  proceeding  by  one  against 
the  oth«r,  nor  to  a  criminal  action  or  proceedings  for  a  crime  com- 
mitted by  one  against  the  other;  or  in  an  action  brought  by  hus- 
band or  wife  against  another  person  for  the  alienation  of  the  af- 
fections of  either  husband  or  wife  or  in  an  action  for  damages 
against  another  person  for  adultery  committed  by  either  husband 
or  wife. 

2.  An  attorney  cannot,  without  the  consent  of  his  client,  be  ex- 
amined as  to  any  communication  made  by  the  client  to  him,  or  his 
advice  given  on  it  in  the  course  of  professional  employment;  nor 
can  an  attorney's  secretary,  stenographer,  or  clerk  be  examined, 
without  the  consent  of  his  employer,  concerning  any  fact  the 
knowledge  of  which  has  been  acquired  in  such  capacity. 

3.  A   clergyman    or   priest   cannot,   without   the    consent   of   the 


PROHIBITION   (writ  of)  295 


person  making  the  confession,  be  examined  as  to  any  confession 
made  to  him  in  his  professional  character  in  the  course  of  disci- 
pline enjoined  by  the  church  to  which  he  belongs. 

4.  A  licensed  physician  or  surgeon  cannot,  without  the  consent 
of  his  patient,  be  examined  in  a  civil  action  as  to  any  information 
acquired  in  attending  the  patient,  which  was  necessary  to  enable 
him  to  prescribe  or  act  for  the  patient;  provided,  however,  that 
after  the  death  of  the  patient,  the  executor  of  his  will,  or  the 
administrator  of  his  estate,  or  the  surviving  spouse  of  the  deceased, 
or,  if  there  be  no  surviving  spouse,  the  children  of  the  deceased 
personally,  or,  if  minors,  by  their  guardians,  may  give  such  consent, 
in  any  action  or  proceeding  brought  to  recover  damages  on  ac- 
count of  the  death  of  the  patient,  caused  by  the  negligent  or  wrong- 
ful act  of  another. 

5.  A  public  officer  cannot  be  examined  as  to  communications 
made  to  him  in  official  confidence,  when  the  public  interest  would 
suffer  by  the  disclosure. 

Process  includes  all  writs,  warrants,  summons  and  orders  of  court 
or  judicial  officers.     See  Notice. 

Promissory  Note:  See  Negotiable  Instruments,  113083,  3265,  3205, 
3211,  3170. 

The  writ  of  prohibition  is  the  counterpart  of  the  writ  of  mandate. 
It  arrests  the  proceedings  of  any  tribunal,  corporation,  board,  or 
person  exercising  judicial  functions,  when  such  proceedings  are 
without  or  in  excess  of  the  jurisdiction  of  such  tribunal,  corporation, 
board  or  person.  It  may  be  issued  by  any  court  except  police  or 
justices'  courts,  to  an  inferior  tribunal  or  to  a  corporation,  board, 
or  person,  in  all  cases  where  there  is  not  a  plain,  speedy,  and  ade- 
quate remedy  in  the  ordinary  course  of  law.  It  is  issued  upon  the 
verified  petition  of  the  person  beneficially  interested.  The  writ 
must  be  either  alternative  or  peremptory.  The  alternative  writ  piust 
command  the  party  to  whom  it  is  directed  to  desist  or  refrain  from 
further  proceedings  in  the  action  or  matter  specified  therein,  until 
the  further  order  of  the  court  from  which  it  is  issued,  and  to  show 
cause  before  such  court,  at  a  specified  time  and  place,  why  such 
party  should  not  be  absolutely  restrained  from  any  further  proceed- 
ings in  such  action  or  matter.  The  peremptory  writ  must  be  in  a 
similar  form,  except  that  the  words  requiring  the  party  to  show  causa 


296  PROXY 


why  he  should  not  be  absolutely  restrained,  etc.,  must  be  omitted, 
and  a  return  day  inserted. 

Procuration:     See  Negotiable  Instruments,  113102. 

Property:     See  Personal  Property;  Real  Estate. 

Proscription:     See  Real  Estate,  1133. 

Protest:  See  Negotiable  Instruments,  3192,  3199,  3233  and  fol- 
lowing, 3148,  3251. 

Proxy:     See  Corporations. 

Public  Weighmaster:  See  Weights  and  Measures;  Warehouseman; 
Hay  Baler. 

Section  1.  All  persons,  firms,  corporations,  copartners  or  individ- 
uals engaged  in  the  business  of  public  weighing  for  hire,  or  any 
person,  firm  or  corporation,  who  shall  weigh  or  measure  any  com- 
modity, produce,  or  article,  and  issue  for  it  a  weight  certificate  which 
shall  be  accepted  as  the  accurate  weight  upon  which  the  purchase  or 
sale  of  such  commodity,  produce  or  article,  is  based,  shall  be  known 
as  a  public  weighmaster,  and  shall  file  a  bond  with  the  state  superin- 
tendent of  weights  and  measures  in  the  sum  of  one  thousand  dollars 
for  the  faithful  performance  of  his  duties,  and  shall  obtain  from  the 
state  superintendent  of  weights  and  measures  a  seal  for  the  stamp- 
ing of  weight  certificates  hereinafter  provided  for,  which  shall  only 
be  in  such  form  as  such  superintendent  may  prescribe;  provided,  that 
nothing  in  this  act  shall  apply  to  any  scales,  or  to  the  owner  or  lessee 
of  them,  which  are  situated  wholly  outside  of  any  incorporated  city 
or  town,  except  where  said  scales  are  being  used  in  the  weighing  of 
any  commodity  which  has  been  or  is  being  purchased  by  the  owner 
or  lessee  of  it,  which  are  being  used  in  the  weighing  of  any  com- 
modity intended  for  storage  for  which  a  storage  charge  is  made. 

(a)  The  said  seals  shall  be  the  property  of  the  state  and  shall  be 
forfeited  and  returned  to  the  state  superintendent  of  weights  and 
measures  upon  termination  of  the  performance  of  the  duties  herein 
prescribed  as  being  the  duties  of  a  public  weighmaster.  Such  seal 
shall  be  of  a  form  and  design  prescribed  by  the  state  superintendent 
and  furnished  by  him  at  the  expense  of  the  weighmaster.  Said  seal 
shall  be  a  recognized  authority  of  accuracy  when  applied  to  weight 
certificates. 

Section  2.  The  state  superintendent  shall  prescribe  a  form  of 
weight  certificate,  and  none  other  than  that  shall  be  used  by  public 
weighmasters. 

Section  3.     They    must    keep    records    of    all    public    weighings, 


PUBLIC  WEIGHMASTER  297 


which  records  must  be  at  all  times  open  to  the  inspection  of  the 
superintendent. 

Section  4.  If  a  public  weighmaster  shall  issue  a  false  certificate 
of  weights  and  measures,  he  shall  be  guilty  of  a  misdemeanor  and 
may  lose  his  certificate,  his  seal,  and  also  be  liable  to  arrest  and 
punishment. 

Section  5.  Any  person,  firm  or  corporation,  who  shall  request 
the  public  weighmaster,  or  any  person  employed  by  him,  to  weigh 
any  product,  commodity,  or  article  falsely  or  incorrectly,  or  who 
shall  request  a  false  or  incorrect  state  certificate  of  weight  and 
measure,  or  any  person  issuing  a  state  certificate  of  weights  and 
measures  who  is  not  a  public  weighmaster  as  provided  for  in  this 
act,  shall  be  guilty  of  a  misdemeanor. 

Section  6.  When  doubt  or  differences  arise  as  to  the  correctness 
of  the  net  or  gross  weight  of  any  amount  or  part  of  any  commodity, 
produce,  or  article  for  which  a  state  certificate  of  weights  and  meas- 
ures has  been  issued  by  a  public  weighmaster,  the  owner,  agent,  or 
consignee  may,  upon  complaint  to  the  state  superintendent  of  weights 
and  measures,  or  his  deputy,  have  said  amount  or  part  of  the  amount 
of  any  commodity,  produce,  or  article,  reweighed  by  the  state  super- 
intendent of  weights  and  measures,  or  a  public  weighmaster  desig- 
nated by  him,  upon  depositing  a  sufficient  sum  of  money  to  defray 
the  actual  cost  of  reweigh  with  the  state  superintendent  of  weights 
and  measures.  If,  on  reweighing,  a  difference  in  the  original  weight 
is  discovered  as  the  result  of  fraud,  carelessness  or  faulty  apparatus, 
the  cost  of  reweighing  shall  be  borne  by  the  public  weighmaster  re- 
sponsible for  the  issuance  of  such  faulty  state  certificate  of  weights 
and  measures.  All  public  weighmasters  employing  or  designating 
any  person  to  act  for  them  as  deputy  public  weighmaster,  shall  be 
responsible  for  all  acts  performed  by  such  person,  and  the  public 
weighmaster  shall  forward  to  the  state  superintendent  of  weights 
and  measures  the  name  and  address  of  persons  so  appointed. 

Section  7.  All  amounts,  lots,  shipments,  or  consignments  of  prod- 
ucts, after  having  been  weighed,  shall  be  piled  or  stored  separately, 
as  near  as  can  be,  or  in  some  manner  marked  in  order  that  said 
amounts,  lots,  shipments,  or  consignments  may  be  distinguished  from 
each  of  a  like  kind.  When  any  product  is  sold  subject  to  public 
weighmaster  weights,  such  weight  shall  be  the  true  net  weight  of 
the  product.    Net  weight  within  the  meaning  of  this  act  shall  be  the 


298  REAL  ESTATE  AGENTS 


correct  or  actual  weight  of  the  commodity  excluding  the  weight  of 
the  container. 

Section  7  (a)).  Any  person  violating  any  of  the  provisions  of 
this  act  shall  be  guilty  of  a  misdemeanor. 

Quit  Claim:     See  Real  Estate,  1140. 

Ranch  Name:     See  Trade  Name. 

Ratification:     See  Contracts;  Agency;  Waiver. 

Real  Estate  Agents:  See  Real  Estate;  Statute  of  Frauds;  Agency; 
Factor. 

All  persons  acting  as  real  estate  agents  must  secure  a  license 
to  do  so — according  to  a  law  passed  in  1919.  This  was  similar  to  a 
law  passed  in  1917,  which  was  afterward  declared  to  be  uncon- 
stitutional. The  present  law  was  declared  constitutional  by  our 
Supreme  Court  in  December,  1919. 

Real  estate  brokers  are  those  who  negotiate  between  the  buyer 
and  seller  of  real  property,  either  finding  a  purchaser  for  one  de- 
sirous of  selling,  or  vice  versa;  they  also  manage  estates,  collect 
rents,  lease  or  let  property  and  negotiate  loans  on  bonds  and  mort- 
gages. 

An  agreement  authorizing  or  employing  an  agent  or  broker  to 
purchase  or  sell  real  estate  for  compensation  or  for  a  commission 
must  be  in  writing  signed  by  the  parties  to  be  charged  or  his  agents 
duly  authorized. 

If  there  is  no  agreement  in  writing,  a  broker  cannot  collect  for 
the  reasonable  value  of  his  services,  even  though  it  is  through  his 
eflPorts  that  the  sale  is  made. 

The  following  agreements  need  not  be  in  writing:  A  broker 
who  loans  the  money  to  another,  and  takes  land  as  security;  the 
promise  of  one  broker  to  divide  commissions  with  another;  a  part- 
nership for  the  purpose  of  buying  and  selling  land;  an  oral  con- 
tract between  brokers  whereby  one  employs  another  to  secure  the 
co-operation  of  another  to  sell  real  estate.  (Such  contracts  fall 
into  one  of  three  classes — partnership,  division  of  commission,  or 
promise  to  pay  a  definite  sum  for  securing  a  purchaser.) 

But  a  real  estate  broker's  agreement  to  sell  subdivided  land  for 
a  portion  of  the  profits  is  not  a  partnership,  nor  is  a  lease  of 
farm  lands  with  a  share  of  the  crop. 

The  owner  of  a  tract  of  land  agreed  in  writing  with  a  firm  of 
real  estate  agents  that  they  should  have  the  exclusive  sale  of  triis 


REAL  ESTATE  AGENTS  299 


tract  and  that  they  must  make  certain  improvements;  after  the 
proceeds  of  the  sales  and  of  any  crops  he  should  first  receive  a 
certain  sum  pro  rata  and  the  balance  was  to  be  divided  equally 
between  him  and  them.     This  was  not  a  partnership. 

A  broker  who  is  an  agent  in  making  a  loan  upon  real  property 
may  also  be  a  partner  in  the  firm  who  borrowed  the  money. 

The  broker  undertakes,  as  a  condition  of  his  right  to  demand  a 
commission,  to  bring  the  buyer  and  seller  to  an  agreement. 

It  is  his  duty  to  negotiate  a  sale;  that  is,  to  procure  a  valid  con- 
tract to  purchase,  which  could  be  enforced  by  the  seller,  if  his  title 
is  perfect;  or  if  the  broker  does  not  procure  such  a  contract,  to 
bring  the  seller  and  the  proposed  purchaser  together,  that  the 
seller  may  procure  such  a  contract — unless  he  is  willing  to  trust  to 
an  oral  agreement. 

To    "consummate    a    deal"    means    to    bring    it    to    completion. 

Each  case  must  be  decided  on  its  own  facts. 

Examples:  An  agreement  with  an  agent  read  "he  now  has  a 
prospective  purchaser  from  whom  he  expects  to  secure  the  sum  of 
$1500  for  a  lease — ^and  should  he  succeed  in  consummating  a  deal 
with  this  purchaser"  a  commission  was  to  be  paid.  If  the  $1500 
was  paid  by  this  purchaser  the  agent  was  entitled  to  his  commis- 
sion, even  though  nothing  further  was  done. 

"These  gentlemen  seem  to  be  very  much  pleased  and  will  talk  to 
you  on  commission,  so  arrange  with  them.  I  simply  told  them  they 
could  adjust  the  matter  with  you,  as  I  would  surely  allow  you  a 
commission  if  I  did  sell  to  them."  Such  a  letter  written  by  the 
owner  to  the  agent  is  NOT  an  agreement  to  pay  commission. 

Two  persons  agreed  in  writing  to  exchange  properties,  but  did 
not,  because  the  title  to  one  parcel  was  defective.  In  the  same 
instrument  they  also  wrote  "The  parties  hereto  further  mutually 
covenant  and  agree  that  they  will  pay  to  (broker)  a  commission  of 
$1850;"  but  they  did  not  have  to,  because  this  clause  was  de- 
pendent upon  the  exchange  being  made. 

"The  undersigned  agrees  that  if  the  Western  Barrel  Co.  or  any 
concern  represented  by  B.  F.  M.,  leases  a  certain  building  to  be 
erected  by  the  undersigned,  he  will  pay  to  the  agent  fifteen  hun- 
dred dollars  for  services  rendered  in  making  such  lease."  The 
signer  formed  a  corporation  who  erected  such  a  building,  as  he 
could  not  finance  it.     The  Barrel   Co.  and   a  partnership  with   B. 


300  REAL  ESTATE  AGENTS 


F.  M.  as  one  of  his  members,  together  with  the  Earl  Fruit  Co. 
(whom  the  agent  did  not  represent)  leased  the  building.  The 
agent  could  recover  his  commission. 

"I  reserve  the  right  to  sell  said  property  myself,  or  to  sell  said 
property  through  the  agency  of  any  one  else,  but  I  hereby  agree 
that  in  such  case  should  sale  by  made  by  myself  or  through  any 
other  agency,  in  consideration  of  their  services,  to  pay  a  commis- 
sion." The  broker  who  held  this  agreement  was  entitled  to  his 
commission  when  the  sale  was  made,  even  though  it  was  made  by 
other  brokers  to  parties  whom  he  had  never  seen. 

"If  you  can  purchase  the  N.  W.  corner  of  First  and  B  streets 
for  $50,000  I  think  we  would  be  ready  to  purchase  next  week." 
This  was  not  a  sufficient  offer  of  employment. 

Where  the  owner  agreed  that  if  before  the  expiration  of  the 
contract  he  should  withdraw  the  sale  of  the  property  the  broker 
should  be  entitled  to  his  commission — he  did  so  and  had  to  pay  the 
broker. 

In  another  case  the  owner  agreed  that  "a  commission  is  to  be 
paid  in  the  event  of  a  sale  of  said  property  by  them  or  any  one 
else,  including  myself." 

EXCLUSIVE  AGENCY:  An  exclusive  agency  is  one  given  by 
the  owner  to  only  one  broker,  for  a  definite  period.  If  during  this 
period  another  broker  should  sell  the  land  and  be  paid  a  commis- 
sion by  the  owner,  the  first  agent  could  also  recover  a  commission. 

There  is  a  distinction,  however,  between  an  exclusive  AGENCY 
(in  which  the  owner  has  the  right  to  sell  the  property  himself 
without  being  liable  to  the  agent  for  commission)  and  the  ex- 
clusive RIGHT  to  sell  the  property — where  the  owner  would  be 
compelled  to  pay  a  commission,  no  matter  who  sold  the  property. 

"I  hereby  authorize  you  solely  to  sell  my  property"  is  an  ex- 
clusive agency. 

Brokers  were  authorized  to  sell  the  property  at  any  time  within 
one  year  and  that  the  commission  should  be  paid  if  the  owners 
withdrew  the  property  from  sale  or  effected  a  sale  in  any  way  dur- 
ing the  year.  The  owners  did  make  a  sale  during  the  year,  and, 
therefore,  were  liable  for  the  commission. 

Frequently  the  owner  is  willing  that  the  agent  should  also  make 
a  contract  for  the  direct  sale  of  the  propertj%  and  under  such  cir- 


REAL  ESTATE  AGENTS  301 


cumstances  that  agreement  must  not  only  be  written,  but  must  be 
definite  in  form  and  explicit  with  proper  descriptions. 

"Negotiate"  means  the  conversation  in  arranging  the  terms  of  a 
contract;  and  one  given  a  writing  with  the  words  "make  and  ne- 
gotiate a  sale"  of  real  property  may  neither  give  a  valid  deed,  nor 
make  a  contract  for  the  sale;  nor  is  such  authority  given  by  the 
words  "for  sale,"  or  "to  sell." 

The  following  have  been  decided  to  give  the  agent  sufficient 
power  to  make  an  agreement  to  sell  which  would  bind  the  owner, 
but  not  sufficient  to  make  an  absolute  deed,  which  would  be  bind- 
ing upon  the  owner: 

"I  hereby  authorize  John  Richards  and  grant  to  him  the  ex- 
clusive right  to  sell  for  me  in  my  name  and  to  receipt  for  deposit 
thereon — I  hereby  agree  to  sell  and  convey  by  good  and  sufficient 
grant  deed  said  property  to  any  purchaser  obtained  by  him." 

"I  wish  you  to  manage  my  property  as  you  would  your  own,  and 
if  a  good  opportunity  offers  to  sell  everything  I  have;  I  will  be 
glad  to  sell." 

An  agent  accepted  a  deposit  of  $50  on  a  lot,  though  he  was 
not  authorized  by  the  owner  to  make  any  agreements  of  any  kind 
regarding  it.  The  owner  did  tell  another  person  that  this  agent 
was  authorized  by  him  to  sell  the  lot  and  directed  that  person  to 
see  the  agent  "in  the  matter." 

The  following  is  an  unqualified  power  of  attorney  to  sell  the 
land  mentioned:  "You  are  hereby  authorized  and  empowered  as 
agents  for  me  to  sell  my  property." 

The  following  have  been  held  as  NOT  sufficient  authority  for 
an  agent  to  convey  the  property  of  his  principal: 

"Sell  the  property." 

"You  are  hereby  authorized  to  sell  my  property  and  receive 
deposit  on  same,  for  the  sum  of  $200  per  acre  cash.  I  hereby 
agree  to  pay  you  the  sum  of  5%  for  your  services  in  case  you 
effect  a  sale." 

"If  you  can  purchase  N.  W.  corner  of  13th  and  Franklin,  75x100, 
for  $42,000,  I  think  we  would  be  ready  to  purchase  same  by  Mon- 
day next." 

A  receipt  signed  by  an  attorney  for  the  estate  to  which  the 
real  property  belonged,  a  report  of  the  sale  of  such  property  in  the 


r.02  KEAL  ESTATE  AGENTS 


matter  of  such  estate  and  a  check  drawn  by  the  purchaser  of  such 
sale  are   not  sufficient  to   satisfy   the   statute   of   frauds. 

The  owner  wrote:  "Try  and  find  a  purchaser  for  my  property." 
The  agent  wired  him:  "Have  sold  house  6150;  wire  confirmation." 
The  owner  wired  answer;  "Terms  satisfactory." 

" is  hereby  authorized  to  sell  my  property." 

An  agent  with  authority  to  sell  land  in  twenty-acre  tracts  upon 
certain  definite  terms  has  no  authority  to  bind  the  owner  in  the 
sale  of  ten-acre  tracts  upon  different  terms,  when  the  owner  does 
not  sanction  the  agreement  nor  receive  any  of  the  money. 

COMMISSIONS  FROM  BOTH  SIDES:  A  broker  may  collect 
a  commission  from  both  sides  provided  he  acts  only  as  a  mere 
middleman,  and  does  not  act  as  an  adviser  for  one  side  or  the 
other;  and  provided  also  that  both  sides  understand  he  is  receiving 
this  double  commission,  but  not  otherwise. 

HOW  COMMISSION  IS  EARNED:  The  broker's  commission  is 
earned  in  one  of  three  ways:  (a)  effecting  a  binding  contract  of 
sale  under  authority  given  the  agent;  (b)  producing  a  purchaser 
to  whom  the  sale  is  actually  made;  (c)  producing  before  the  seller 
a  purchaser  (I)  Ready  (II)  Willing  and  (III)  Able  to  buy  (IV) 
On  the  terms  proposed  (V)  Or  others  agreed  upon  (VI)  Within 
the  time  limit  of  the  agreement. 

(a)  The  agent  is  entitled  to  his  commission  when  he  has  pro- 
duced a  contract  signed  by  a  solvent  purchaser,  even  though  his 
agency  is  revoked,  or  the  title  is  bad,  or  though  not  upon  the  pre- 
cise terms  nor  at  the  date  agreed  upon,  nor  even  if  sold  to  another 
purchaser  after  the  broker  has  submitted  one  who  would  buy  or  if 
the  sale  fails  because  of  a  defective  title  or  if  the  owner  casts  sus- 
picion on  it  or  defers  meeting  the  intended  purchaser  until  after  the 
term  of  the  agent's  employment  has  expired. 

The  agent  cannot  recover  if  the  property  is  sold  by  the  owner 
before  the  broker  has  found  a  buyer  unless  the  option  is  EX- 
CLUSIVE. 

(b)  If  tRe  agent  introduces  the  purchaser  or  discloses  his  name 
to  the  seller  and  through  such  introduction  or  disclosure  negotia- 
tions are  begun  which  lead  to  the  sale,  the  broker  can  recover; 
also  if  he  first  calls  the  attention  of  the  purchaser  to  the  land  and 
advises  him  to  buy  it,  even  though  the  deal  is  finally  negotiated 
with  the  owner  through  the  agent  of  the   purchaser. 


REAL  ESTATE  AGENTS  303 


The  broker  need  not  have  personally  conducted  the  negotiations 
nor  be  present  when  the  bargain  was  completed,  nor  need  the 
owner  at  the  time  have  known  that  the  purchaser  was  one  found 
by  the  broker.  If  the  efforts  of  the  broker  were  the  procurinc: 
cause  of  the  sale,  though  the  parties  themselves  did  the  negotiat- 
ing,  this  will   be   sufficient. 

(c)  The  payment  of  commission  is  not  contingent  upon  the 
consummation  of  the  sale.  The  buyer  must  be  produced  before  the 
seller,  or  his  name  given.  It  is  not  sufficient  for  the  agent  to  say 
when  asked  if  he  told  the  owner  to  whom  he  could  sell  the  place, 
"I  told  him  a  man  in  Oakland — I  don't  remember  if  I  used  the 
name,"  nor  can  the  broker  or  the  purchaser  compel  him  to  go  to  the 
place  of  bu.=?iness  of  the  seller,  either  to  make  the  contract  of  sale 
or  to  negotiate  for  its  terms. 

(c-i)  Before  a  broker  has  earned  his  commission  it  must  also 
be  shown  that  he  produced  a  purchaser  who  was  ready  and  will- 
ing to  make  the  purchase;  such  readiness  and  willingness  can  be 
shown  only  by  an  offer  on  the  buyer's  part  to  purchase.  Such  an 
offer  must  either  be  to  the  seller  (not  to  the  broker)  or  a  contract 
must  actually  be  entered  into. 

It  is  not  sufficient  to  find  a  purchaser  who  is  financially  able,  but 
who  only  expresses  his  willingness  and  readiness  to  the  broker  and 
who  makes  a  deposit  with  the  broker,  but  who  is  never  introduced 
to  the  seller. 

"I  further  agree  that  when  the  brokers  have  secured  an  ac- 
ceptance of  this  proposition  to  exchange  the  said  property  on  said 
terms  I  will  then  pay  them  the  regular  commission."  As 
soon  as  this  offer  is  accepted  in  writing,  by  a  person  who  is  ABLE 
to  make  the  exchange,  the  broker  need  do  nothing  further,  and  has 
no  other  responsibilities.  His  commission  is  due,  even  though  the 
parties  do  not  carry  out  their  agreements. 

A  broker  secured  a  buyer  who  signed  the  following  agreement: 
"It  is  hereby  agreed  that  the  above  property  is  this  day  sold  to 
the  undersigned  for  the  sum  of  $4500.00."  This  was  held  to  be 
merely  an  OPTION  and  not  a  showing  that  the  signers  were 
financially  responsible. 

Where  a  person  submitted  by  a  broker  as  a  prospective  buyer 
did  not  give  satisfactory  assurance  that  he  would  be  able  to  fulfill 


504  REAL  ESTATE  AGENTS 


all  of  the  obligations,  saying  that  "he  was  much  inclined  to  over- 
reach himself,'*  he  was  not  considered  ABLE   to  buy. 

The  buyer  was  to  comply  with  escrow  instructions  by  placing  the 
purchase  price  within  fifteen  days.  He  did  not  do  so  and  the 
broker  could  not  recover  his  commission. 

(c-iv)  A  broker  is  held  strictly  to  the  terms  of  his  agency.  He 
cannot  recover  where  he  submits  a  buyer  upon  terms  differing  in 
any  manner  from  those  imposed  by  the  seller,  unless  such  terms  are 
afterwards  accepted  or  ratified  by  the  seller. 

If  no  TERM  is  expressed  in  the  broker's  contract  it  may  be  ter- 
minated at  will  by  either  party.  The  price  must  be  named.  If 
there  is  none,  the  owner  may  refuse  every  offer  made. 

(c-v)  A  written  authority  cannot  be  changed  by  a  verbal  agree- 
ment. If  the  agent  should  obtain  a  v/ritten  offer  upon  definite 
terms  and  the  owner  afterwards  gives  him  a  verbal  modification  of 
these  terms  and  he  secures  a  customer  upon  these  changed  terms 
he  cannot  recover. 

(c-vi)  When  an  agent  procures  an  agreement  in  which  time  is 
of  the  essence,  he  is  bound  by  its  terms.  There  is  no  implied 
promise  arising  of  necessity  from  the  relation  existing  between  a 
prospective  seller  and  his  agent  that  the  former  will  pay  a  commis- 
sion if,  at  a  time  subsequent  to  the  life  of  the  written  contract,  the 
property  is  sold  to  the  person  introduced  to  the  owner. 

If  the  purchaser  is  willing  to  take  the  property  on  different  terms 
and  the  variance  is  waived  by  the  seller,  the  broker  may  obtain  his 
commission.  Or,  if  after  having  prod-oced  a  suitable  purchaser 
but  not  within  the  time  limit,  owing  to  delay  caused  by  his  prin- 
cipal, the  broker  is  still  entitled  to  his  commission. 

(c-vii)  A  written  agreement  limiting  the  agent's  time  cannot  be 
extended  by  a  verbal  agreement. 

A  prospective  purchaser  introduced  by  the  agent  to  the  owner 
within  the  two  months  mentioned  in  their  agreement  of  agency, 
promised  to  take  the  property  on  the  terms  offered,  but  did  not  do 
so.  After  the  time  expired  other  negotiations  were  opened  and  he 
finally  bought  it,  but  the  agent  could  not  obtain  a  commission. 

On  May  22nd  the  owner  gave  an  agent  a  verbal  offer  to  sell 
property  for  a  certain  amount,  less  59r,  "subject  to  prompt  reply." 
(This  meant  that  the  offer  would  expire  and  cease  to  be  binding 
imless  this  property  was  sold  and  the  owner  notified  on  the  follow- 


REAL  ESTATE  AGENTS  30.' 


ing  day.)  On  May  23rd  the  owner  withdrew  the  offer,  and  began 
negotiations  with  a  person  whom  the  agent  had  interested  in  the 
property  but  whom  he  had  not  introduced  to  the  owner.  The 
owner  made  the  sale  and  the  broker  got  no  commission. 

LEASES:  The  requirements  as  to  the  agent's  obligation  in  the 
matter  of  a  lease  is  the  same  as  if  he  were  to  procure  a  purchaser, 
except  that,  a  lease  being  personal  property,  the  authority  to  the 
agent  need  not  be  in  writing. 

He  is  entitled  to  the  reasonable  value  for  such  services,  which 
may  be  proved  by  the  resolution  of  a  board  of  directors  of  the  real 
estate  exchange,  with  the  evidence  of  other  real  estate  brokers  that 
this  was  the  customary  and  reasonable  charge.  He  is  not  entitled 
to  a  continuing  commission  when  the  same  premises  are  leased  to 
another  corporation  at  the  expiration  of  the  first  term,  although  the 
stockholders  are  the  same  as  in  the  corporation  to  which  the 
premises  were  first  leased. 

"We  will  pay  you  a  commission  upon  the  signing  of  the  lease." 
No  actual  lease  was  ever  signed,  but  the  broker  procured  an  agree- 
ment by  responsible  parties  to  lease  a  building  to  be  erected  for 
their  special  business  and  to  sign  a  lease  upon  its  completion.  The 
construction  of  that  building  was  commenced,  but  it  was  destroyed 
by  the  San  Francisco  fire  before  completion.  The  broker  could 
not  recover. 

RATIFICATION:  The  agreement  for  commission  must  be  rati- 
fied in  writing — if  not  in  writing  originally. 

It  is  not  sufficient  ratification  for  the  owner  to  sell  the  property 
himself,  nor  is  the  following  enough:  A  broker  went  to  the  owner 
and  told  him  he  had  made  the  deal;  the  owner  said  "All  right." 
And  the  broker  tells  the  story  thus:  "I  had  a  contract  of  sale  with 
me  to  sign  showing  that  the  sale  had  been  made  and  I  spoke  to  him 
about  it.  He  said  his  mother  would  have  to  sign  it,  and  he  would 
rather  wait  until  morning.  I  said:  'If  you  cannot  sign  this  up  to- 
night would  it  be  all  right  for  me  to  take  the  money  and  receipt 
for  it?'  He  said:  'It  will  be  all  right;  we  will  sign  the  contract 
tomorrow.'  "  He  never  did  sign  the  contract,  and  the  broker  could 
not  recover. 

An  owner  gave  an  agent  in  writing  the  exclusive  privilege  to  sell 
a  piece  of  real  estate  for  $36,000  cash;  five  days  being  allowed  "to 
find   a  purchaser."      On   the   last   day  the   agent  received   a   verbal 


306  EEAL  ESTATE  AGENTS 


offer  for  the  property  at  $35,000  without  the  house.  He  com- 
municated this  offer  to  the  owner,  on  the  same  day,  giving  the 
name  of  the  proposed  buyer  and  the  owner  said,  "That  is  all  right." 
Two  days  afterward  the  owner  gave  written  authority  to  another 
broker  who  the  next  day  sold  the  house  to  the  same  buyer  at  the 
same  price  which  he  had  offered  before.  The  first  agent  could  also 
recover  a  commission,  because  the  owner  had  ratified  the  change  of 
terms  by  accepting  them. 

The  owner  signed  an  agreement  "for  ten  days  and  thereafter 
until  -"vithdrawn  by  me  in  writing."  After  this  ten  days  the  owner 
wrote  at  the  bottom  of  this  agreement,  "The  above  contract  is 
hereby  extended  to  November  15th.  I  accept  the  above."  The 
agent  produced  the  buyer  December  15th.  He  could  recover  his 
commission. 

REVOCATION:  Is  by  mutual  consent,  performance,  the  pleas- 
ure of  cither  party  in  good  faith,  lapse  of  time,  sale  by  another, 
destruction  of  the  property,  bankruptcy,  insanity  or  death  of  either 
party,  fraud  of  the  agent. 

If  the  agent  has  expended  time  and  effort  in  seeking  to  find  a 
purchaser,  his  agreement  cannot  be  revoked  before  the  expiration 
of  its  term,  but  if  his  contract  is  cancelled  he  cannot  make  future 
contracts  for  the  sale  of  land. 

If  the  agent  submits  several  buyers  or  tenant?,  all  of  whom  are 
rejected  by  the  owner,  and  negotiations  are  broken  off,  and  the 
agent's  term  expires,  the  agent  cannot  recover  a  commission  pro- 
vided the  owner  afterwards  sells  to  some  of  these  buyers  submitted 
by  the  agent;  unless,  perhaps,  if  the  agreement  of  agency  was 
irrevocable. 

OPINIONS:  There  is  a  very  fine  border  line  between  MIS- 
REPRESENTATIONS made  by  an  agent  in  his  endeavor  to  sell 
property,  and  his  mere  opinion,  or  exaggerated  statement  of  his 
belief  (See  Warranty).  Our  Supreme  Court  has  decided  that  the 
following  statements  are  only  OPINIONS,  and  do  not  constitute 
misrepresentations:  "It  is  good  orange  land.  Would  raise  oranges; 
would  make  you  a  fine  living;  first  class  decomposed  granite,  or 
gravel;  free  from  frost;  you  can  put  out  oranges  in  the  summer, 
and  go  east,  and  come  back,  and  you  will  get  oranges;"  the  value 
of  book  accounts;  the  amount  of  horsepower  which   could   be   de- 


REAL  ESTATE  AGEXTS  307 


veloped  with  certain  water;  the  amount  of  earth  necessary  in  an 
excavation;  character  of  earth  along  the  line  of  a  levee. 

The  following  have  been  decided  to  be  statements  of  facts,  and, 
if  untrue,  were  then  misrepresentations  (See  Fraud;  Recission) : 
As  to  the  character  of  land,  and  its  suitableness  for  fruit  ranch; 
the  value  and  richness  of  a  mine  and  its  convenience  to  water; 
that  certain  land  was  abundantly  watered  by  means  of  having  44 
shares  in  a  certain  water  company,  and  that  there  would  be  flow- 
ing a  specified  amount  of  water,  which  would  be  ample  to  irrigate 
the  entire  land  and  produce  crops  of  alfalfa;  value  of  ore  in  an 
ore  dump;  value  of  mining  property  in  Mexico;  value  of  goodwill 
and  business;  representation  as  to  the  cost  of  a  building;  as  to  the 
ownership  of  land;  "containing  40  acres,  more  or  less,"  when 
there  were  only  23  acres." 

FRAUD  OF  THE  AGENT:    (a)  To  the  owner;  (b)  To  the  buyer. 

(a)  In  the  employment  of  an  agent  the  principal  bargains  for 
his  disinterested  skill  and  diligence,  and  whenever  the  interests  of 
the  agent  become  antagonistic  to  those  of  his  employer,  he  violates 
his  obligation  by  continuing  to  act  in  his  behalf  without  disclosing 
that  fact. 

A  broker  who  is  employed  by  the  owner  to  sell  his  property  is, 
by  the  mere  fact  of  accepting  such  employment,  precluded  from  ac- 
quiring an  interest  in  the  property  he  is  employed  to  sell.  He  can- 
not act  as  such  agent  in  making  a  sale,  either  to  himself  or  where 
he  is  interested  in  the  purchase,  and  he  is  equally  precluded  from 
having  a  personal  interest  in  the  result  of  the  sale  of  which  the 
principal  is  ignorant. 

Whenever  he  has  an  interest  in  making  the  sale  which  is  antag- 
onistic to  that  of  his  principal,  he  is  unable  to  discharge  his  full 
duty  to  the  latter,  and  by  continuing  to  act  as  his  agent,  without 
disclosing  to  him  the  fact  of  such  interest,  he  commits  a  fraud  upon 
him  which  will  deprive  him  of  all  right  to  compensation  for  his 
services. 

Examples:  If  an  agent  without  authority  purchases  land  for  his 
principal,  claiming  that  he  paid  a  certain  price,  when,  in  reality, 
he  paid  less,  and  if  the  principal  pays  the  higher  sum,  he  may  re- 
cover the  difference  back  from  the  agent,  and  need  not  reconvey 
the  land. 

An  agent  who  took  an  option  on  a  piece  of  land  for  the  sum  of 


308  REAL  ESTATE  AGENTS 


$1850,  but  who  told  his  principal  that  the  option  price  was  $2850, 
and  who  sold  the  land  to  the  principal  for  the  latter  sum,  and  put 
the  difference  in  his  pocket,  could  be  compelled  by  the  buyer  to 
refund  the  profit  thus  wrongfully  obtained. 

(b)  One  who  deals  with  another  upon  his  mere  statement  that 
he  is  the  agent  of  some  third  party  takes  upon  himself  the  risk  of 
being  able  to  show  that  such  agency  existed.  If,  instead  of  satis- 
fying himself  upon  the  subject  by  independent  investigation,  he  ac- 
cepts such  statements  and  is  deceived,  he  is  the  victim  of  his  own 
credulity. 

An  agent  may  buy  of  his  principal  or  have  an  interest  in  the 
sale  of  property  belonging  to  the  principal  and  within  the  scope  of 
his  authority,  provided  that  the  principal  had  knowledge  of  all 
these  facts,  and  after  the  agent  has  made  a  full  disclosure  of  all 
he  knows  with  regard  to  the  property. 

If  a  prospective  buyer  pays  a  portion  of  the  purchase  price  of 
land  to  the  agent  of  the  owner  he  cannot  compel  the  owner  to  de- 
liver title  upon  tender  or  payment  of  the  balance  of  the  purchase 
price,  where  there  was  no  written  agreement  from  the  owner 
directly. 

A  breach  of  the  contract  of  agency  on  the  part  of  the  owner  of 
property  or  the  borrower  of  money  would  consist  in:  (1)  Either 
accepting  and  receiving  the  loan  and  then  refusing  to  pay  the  corn- 
mission;  or,  (2)  In  refusing  to  accept  and  receive  the  loan  when 
the  broker  had  procured  it  according  to  the  terms  of  their  agency; 
in  either  of  these  cases  the  brokers  would  be  entitled  to  their 
commission. 

Where  the  contract  fixes  the  broker's  right  to  remuneration  upon 
his  sale,  if  he  shall  produce  a  purchaser  ready  and  willing  to  buy, 
he  has  performed  his  part  of  the  contract,  the  owner's  liability  for 
his  commission  is  complete,  and  cannot  be  avoided  by  any  arbitrary 
or  wanton  refusal  to  consummate  the  sale. 

"The  owner  cannot  avail  himself  of  the  services,  and,  by  making 
a  sale  through  information  derived  from  his  agent,  deprive  the 
latter  of  his  commission." 

"A  broker  may  by  special  agreement  with  his  principal  so  con- 
tract as  to  make  his  compensation  depend  upon  a  contingency  which 
his  own  efforts  cannot  control,  even  though  such  contingency  relate 
to  acts  of  his  principal." 


REAL  PROPERTY  309 


An  agreement  to  sell  real  property  binds  the  seller  to  execute  a 
conveyance  to  pass  the  title  to  the  property. 

An  agreement  on  the  part  of  a  seller  of  real  property  to  give 
the  usual  covenants,  binds  him  to  insert  in  the  grant,  covenants  of 
"seizin,"  quiet  enjoyment,"  "further  assurance,"  "general  war- 
ranty," and  "against  encumbrances." 

These  covenants  must  be  in  substance  as  follows:  "The  party 
of  the  first  part  covenants  with  the  party  of  the  second  part,  that 
the  former  is  now  seized  in  fee  simple  of  the  property  granted; 
that  the  latter  shall  enjoy  the  same  without  any  lawful  disturbance; 
that  the  same  is  free  from  all  encumbrances;  that  the  party  of  the 
first  part,  and  all  persons  acquiring  any  interest  in  the  same  through 
or  for  him,  will,  on  demand,  execute  and  deliver  to  the  party  of 
the  second  part,  at  the  expense  of  the  latter,  any  further  assur- 
ance of  the  same  that  may  be  reasonably  required;  and  that  the 
party  of  the  first  part  will  warrant  to  the  party  of  the  second  part 
all  the  said  property  against  evei-y  person  lawfully  claiming  the 
same." 

Damage  caused  by  the  breach  of  a  covenant  of  "seizin;"  of 
"right  to  convey"  or  "warranty;"  of  "quiet  enjoyment,"  in  a  grant 
of  an  estate  in  real  property,  is  deemed  to  be:  (1)  The  price  paid 
to  the  grantor;  or  if  the  breach  is  partial  only,  such  proportion  of 
the  price  as  the  value  of  the  property  affected  by  the  breach  bore 
at  the  time  of  the  grant  to  the  value  of  the  whole  property;  (2) 
Interest  on  it  for  the  time  during  which  the  grantee  derived  no 
benefit  from  the  property,  not  exceeding  five  years;  (3)  Any  ex- 
penses incurred  by  the  covenantee  in  defending  his  possession. 

Real  Property:  All  property  is  divided  into  two  classes:  REAL, 
or  immovable;  PERSONAL,  or  movable.  REAL  PROPERTY  con- 
sists of  LAND;  that  which  is  affixed  to  land;  that  which  is  inci- 
dental to  land,  or  appurtenant  to  it;  that  which  is  immovable  by 
law.  LAND  is  the  solid  material  of  the  earth,  whatever  may  be  the 
ingredients  of  which  it  is  composed,  whether  soil,  rock,  or  other 
substance.  The  owner  of  land  in  fee,  has  the  right  to  the  surface, 
and  to  everything  permanently  situated  above  it  or  below  it. 

Property  is  acquired  by  (a)  occupancy;  (b)  Accession;  (c)  trans- 
fer;  (d)   Will  or  Succession. 

OCCUPANCY  for  any  period  confers  a  title  sufficient  against 
all  except  the  State  and  those  who  have  a  title  by  prescription,  ac- 


310  REAL  PROPERTY 


cession,  transfer,  will  or  succession;  provided,  however,  that  the 
title  conferred  by  such  occupancy  shall  not  be  a  sufficient  interest 
in  real  property  to  enable  the  occupant  or  his  privies  to  commence 
or  to  maintain  an  action  to  quiet  title,  unless  soch  occupancy  shall 
have  ripened  into  a  title  by  prescription. 

REAL  ESTATE  includes  (1)  the  possession  of,  claim  to,  owner- 
ship of,  or  right  to,  the  possession  of  land;  (2)  All  mines,  minerals, 
and  quarries  in,  and  under  the  land,  all  timber  belonging  to  in- 
dividuals or  corporations,  growing  or  being  on  the  lands  of  the 
United  States,  and  all  rights  and  privileges  pertaining  to  them. 
Thus,  oil  is  a  mineral,  and  land  upon  which  is  growing  timber  may 
be  conveyed  to  one  person,  and  the  timber  to  another — or,  the  title 
to  timber  can  be  held  and  transferred  to  one  who  is  not  the  owner 
of  the  land  (See  Trees)  ;  (3)  A  mortgage,  deed  of  trust,  contract 
or  other  obligations  by  which  a  debt  is  secured  (when  land  is 
pledged  for  the  payment  and  discharge  of  it)  shall  be  deemed  and 
treated  as  an  interest  in  the  land  pledged — for  the  purpose  of 
taxation;  (4)  Improvements;  a  thing  is  deemed  to  be  affixed  to 
land  when  it  is  attached  to  it  by  roots  (as  in  the  case  of  trees, 
vines  or  shrubs)  or  imbedded  in  it,  as  in  the  case  of  walls;  perma- 
nently resting  upon  it,  as  in  the  case  of  buildings;  or  permanently 
attached  to  what  is  thus  permanent,  as  by  means  of  cement,  plas- 
ter, nails,  bolts  or  screws.  If  growing  crops  are  not  cut,  they  are 
a  part  of  the  land,  and  title  to  them  passes  by  sale  of  the  land — 
unless  specially  reserved.  Improvements  include  (1)  All  buildings, 
structures,  fixtures,  fences  and  improvements,  erected  upon,  or 
affixed  to  the  land,  except  telephone  or  telegraph  lines;  (2)  All 
fruit,  nut  bearing  or  ornamental  trees  and  vines,  not  of  natural 
growth,  except  fruit  and  nut  bearing  trees  under  four  years  of  age, 
and  vines  under  three  years  of  age;  (3)  Alfalfa  after  the  first 
year's  planting. 

When  the  following  burdens  are  attached  to  land,  they  are  called 
EASEMENTS:  (1)  The  right  of  pasture,  (2)  fishing,  (3)  taking 
game,  (4)  of  way;  (5)  Taking  wood,  water,  minerals  and  other 
things;  (6)  Transacting  business,  or  conducting  lawful  sports  upon 
land;  (7)  Receiving  water,  light,  air  or  heat  from,  or  over,  or  dis- 
charging the  same  upon  land;  (8)  Flooding  land,  of  having  water 
flow  without  diminution  or  disturbance  of  any  kind;  (9  Using  a 
party  wall    (See  Fences);    (10)    Receiving  more   than   natural  sup- 


REAL  PROPERTY  311 


port  from  adjacent  land;  (11)  Having  the  whole  of  the  division 
fence,  maintained  by  a  coterminous  owner  (See  Fences)  ;  (12)  Hav- 
ing public  conveyances  stopped,  or  of  stopping  the  same  upon  land; 
(13)   The  right  of  burial,  and  the  right  of  a  seat  in  church. 

RIGHT  TO  FISH:  The  people  shall  have  the  right  to  fish  upon 
and  from  public  lands  of  the  State  and  in  the  waters  of  it,  except- 
ing upon  lands  set  aside  for  fish  hatcheries,  and  no  land  owned 
by  the  State  shall  ever  be  sold  or  transferred  without  reserving 
in  the  people  the  absolute  right  to  fish  upon  them;  and  no  law  shall 
ever  be  passed  making  it  a  crime  for  the  people  to  enter  upon 
the  public  lands  within  this  State  for  the  purpose  of  fishing  in  any 
water  containing  fish  that  have   been  planted   in   it   by   the   State. 

A  RIGHT-OF-WAY  "is  the  privilege  which  one  person,  or  par- 
ticular descriptions  of  persons  may  have,  of  passing  over  the  land 
of  another  in  some  particular  line."  The  entire  width  may  be 
used,  even  though  wider  than  need  be  for  the  purposes  intended, 
but  land  lying  beyond  cannot  be  appropriated;  if  the  way  is  un- 
located,  and  the  owner  of  the  easement  fails  to  designate  it,  the 
owner  of  the  land  may  do  so,  and  if  they  cannot  agree,  the  route 
may  be  determined  by  the   Court. 

A  gave  B  a  "RIGHT-OF-WAY"  across  his  land,  for  purpose  of  a 
driveway  having  gates  at  both  ends,  which  B  should  close  as  he 
passed;  he  refused  to  do  so,  but  the  court  held  that  he  could  not 
use  the  driveway  unless  he  did. 

RIGHT-OF-WAY  BY  USAGE:  When  the  public,  or  such  por- 
tion as  has  occasion  to  use  a  road,  travels  over  it,  with  full  knowl- 
edge of  the  landowners  interested,  without  asking  or  receiving  any 
permission,  and  without  objection  from  anyone,  and  for  a  period 
of  time  beyond  that  required  by  law  to  bar  a  right  of  action,  a 
right  to  the  public  to  the  use  of  the  road  arises  by  prescription,  or 
implied  dedication.  A  dedication  is  presumed  from  long  and  con- 
tinued adverse  use,  as  a  highway. 

A  WAY  OF  NECESSITY:  This  cannot  exist,  except  in  cases  of 
strict  necessity,  nor  when  a  man  can  get  to  his  property  over  his 
own  land.  That  the  way  over  his  own  land  is  too  steep,  or  too  nar- 
row, or  that  other  and  like  difficulties  exist,  does  not  alter  the  case 
— and  it  is  only  when  there  is  no  other  way  through  his  own  land 
that  a  grantee  can  claim  a  right  over  that  of  his  grantor. 


REAL  PliOPERTY 


ANCIENT  LIGHTS : 

Under  the  old  common  lav/  rule  in  England,  a  landowner  had  an 
absolute  right  to  receive  light  and  air  from  the  adjoining  land,  and 
his  windows  could  not  be  closed  up  by  a  building  erected  upon  his 
line;  but,  no  such  easement  was  created  under  our  lavvr,  and  no 
right  of  this  character  can  be  acquired  (in  California)  without  ex- 
press grant,  or  an  interest  in,  or  covenant  relating  to,  the  lands 
over  which  the  right  is  claimed;  an  injunction  vdll  not  be  issued  to 
prevent  a  buyer  from  erecting  a  building  on  his  lot,  so  as  to  close 
up  and  darken  the  windows  in  a  house  of  the  grantor,  and  to  shut 
off  the  light  and  air  to  it.     (See  Fence.) 

(10)      LATERAL  SUPPORT: 

A  land  owner  has  an  interest  in  the  adjoining  land  for  the  lateral 
support  of  the  soil,  subject  to  the  right  of  the  owner  of  this  ad- 
joining land  to  make  proper  and  usual  excavations  on  the  same,  for 
the  purposes  of  construction.  When  so  doing,  he  must  use  reason- 
abe  care  and  skill,  must  take  reasonable  precautions  to  sustain  the 
land  of  the  other,  and  give  reasonable  notice  to  the  other  of  his 
intention  to  make  such  excavations.  This  right  is  only  to  the  land 
in  its  natural  state,  and  not  to  added  weight  placed  upon  it  by 
buildings  or  structure.s.  Whoever  deprives  a  landowner  of  such 
support,  does  an  unlawful  act.  All  who  unite  in  it  are  wrongdoers 
and  are  responsible  in  damages,  even  to  the  contractor  who  per- 
forms the  work.  But  if  a  building  collapses — by  reason  of  adjoin- 
ing excavations — a  tenant  cannot  recover  damages  from  his  land- 
lord. 

Appurtenances:  A  thing  is  deemed  to  be  appurtenant  to  (be- 
longing to)  land  when  it  is  used  by  right  with  the  land  for  its 
benefit — as  a  right  of  way,  a  watercourse,  a  passage  for  light,  or 
air  or  heat  from  or  across  the  land  of  another.  While  shares  of 
stock  (in  a  water  company)  are  not  appurtenant  necessarily,  yet 
they  may  be  shown  to  be,  or  may  be  made  so. 

Certain  covenants  (agreements)  contained  in  grants  of  real 
property  are  appurtenant  to  such  estates,  and  pass  with  them  so  as 
to  bind  the  assigns  of  the  one  who  made  the  covenant,  and  they 
vest  in  the  assigns  of  the  receiver  of  the  covenant,  just  as  if  these 
assigns  had  personally  entered  into  them.  Such  covenants  are  said 
to  "run  with  the  land,"  if  contained  in  a  grant  of  or  an  estate  in 
real  property,  including  WARRANTY,  QUIET  ENJOYMENT,  "for 


REAL  PROPERTY  313 


further  assurance  on  the  part  of  the  grantor,"  or  for  payment  of 
rent,  taxes,  or  assessments. 

Alluvion:  Where,  from  natural  causes,  land  forms  by  imper- 
ceptible degrees  upon  the  bank  of  a  river  or  stream,  navigable  or 
•not  navigable,  either  by  accumulation  of  material,  or  by  the  reces- 
sion  of  the  stream,  it  is  termed  alluvion,  and  such  land  belongs  to 
the  owner  of  the  bank,  subject  to  any  existing  right  of  way  over 
the  bank.  This  rule  also  includes  the  sea  shore.  The  owner  is 
entitled  to  the  land  formed  by  gradual  and  imperceptible  accre- 
tions from  the  water,  regardless  of  the  cause  which  produced  it, 
or  whether  the   flow  was   natural   or   affected   by   artificial   means. 

Avulsion:  If  a  river  or  stream,  navigable  or  not  navigable,  car- 
ries away,  by  reason  of  sudden  violence,  a  considerable  and  dis- 
tinguishable part  of  a  bank,  and  bears  it  to  the  opposite  bank,  or 
to  another  part  of  the  same  bank,  it  is  termed  AVULSION,  and 
the  owner  of  the  part  carried  away  may  reclaim  it  within  a  year 
after  the  owner  of  the  land  to  which  it  has  been  united  takes 
possession  of  it. 

Adverse  Possession  differs  from  PRESCRIPTION,  because  title 
to  land  is  acquired,  while  in  prescription  one  acquires  title  only  to 
an  easement,  and  not  to  the  actual  land  itself,  and  also — no  grant 
is  presumed. 

It  must  be  exclusive,  open  and  notorious,  and  not  secret  or  clan- 
destine; it  must  be  hostile  to  the  claimant's  title  and  claim  to  be 
one's  own  exclusively.  It  must  be  continuous  and  uninterrupted 
for  a  period  of  five  years,  and  the  occupant  must  have  paid  all  the 
taxes  during  that  time. 

A  land  buyer's  possession  is  adverse  to  that  of  the  seller,  as  soon 
as  he  has  paid  the  purchase  price.  One  cannot  claim  adverse 
possession  against  his  landlord,  nor  the  United  States,  nor  the 
State;  nor  if  a  person  is  permitted  to  enter  lands  as  a  favor. 

It  is  acquired  by  occupancy  of  the  land  for  a  period  of  five  years 
and  under  one  of  the  four  following  circumstances: 

(1)  When  the  occupant  (or  those  under  whom  he  claims)  en- 
tered into  the  possession  of  the  property  under  claim  of  title  (ex- 
clusive of  other  right),  founding  such  claim  upon  a  written  ip- 
strument — such  as  a  deed  to  the  property — or  upon  a  decree  or 
judgment   of   a    competent    court,   with    continued    occupation    and 


314  REAL  PiiOPERTY 


possession  of  some  part  of  that  property  for  five   years — unless  it 
consists  of  a  tract  divided  into  lots. 

(2)  When  there  has  been  an  actual  and  continued  occupation 
of  land  under  a  claim  of  title  (exclusive  of  any  other  right),  but 
not  founded  upon  a  written  instrument,  judgment  or  decree. 

(o)  When  the  claim  of  title  is  founded  upon  a  written  instru- 
ment or  a  judgment  or  decree — the  land  is  deemed  to  have  been 
possessed  and  occupied  in  the  following  cases:  (a)  Where  it  has 
been  usually  cultivated  or  improved;  (b)  Where  it  has  been  pro- 
tected by  a  substantial  enclosure  (such  as  a  fence  sufficient  to  turn 
cattle,  even  though  it  had  been  out  of  repair  from  time  to  time;  or 
a  wire  netting  fence  with  posts  four  to  five  feet  high,  or  four  by 
fours,  set  five  to  eight  feet  apart,  with  two  rails;  (c)  Where, 
although  not  so  enclosed,  it  has  been  used  for  the  supply  of  fuel 
or  of  fencing  timber,  for  the  purpose  of  husbandry,  or  for  pasturage 
or  for  the  ordinary  use  of  the  occupant;  (d)  Where  a  known  farm 
or  single  lot  has  been  partly  improved,  the  portion  of  such  farm  or 
lot  that  may  have  been  yet  not  clear,  or  not  enclosed  according  to 
the  usual  custom  and  course  of  the  adjoining  country,  shall  have 
been  deemed  to  have  been  occupied  for  the  same  length  of  time  as 
the  part  improved  and  cultivated;  (4  When  the  claim  of  title  is 
not  founded  upon  a  written  instrument,  or  decree,  land  is  deemed 
to  have  been  possessed  and  occupied  in  the  following  cases  only: 
(a)  Where  it  has  been  protected  by  substantial  enclosure;  (b) 
Where  it  has  been  usually  cultivated  or  improved;  provided,  how- 
ever, that  in  no  case  shall  adverse  possession  be  considered  estab- 
lished unless  it  shall  be  shown  that  the  land  has  been  occupied  and 
claimed  for  the  period  of  five  years  continuously,  and  that  the 
persons,  or  their  predecessors  and  grantors,  have  paid  all  the  taxes, 
which  have  been  levied  and  assessed  upon  their  land. 

An  action  may  be  brought  by  any  person  against  another  who 
claims  an  estate  in  real  property,  adverse  to  him,  for  the  purpose  of 
determining  such  adverse  claim,  and  he  may  also  transfer  it  with 
the  same  effect  as  if  in  actual  possession. 

An  action  must  be  commenced  within  one  year  after  making  an 
entry  upon  real  estate,  and  within  five  years  from  the  time  when 
the  right  to  maTce  it  accrued.  The  adverse  claimant  need  not  re- 
main upon  the  property  every  minute  of  the  entire  period,  but  may 


REAL  PROPERTY  315 


take  occasional  trips  away  from  it;  he  may  also  convey  the  title 
and  another  person  take  possession — as  his  agent. 

Illustrations:  One  person  had  continuously  used  a  roadway  from 
1858  to  1872,  and  his  tenant  since  then  to  April,  1895.  He  was 
then  prevented  from  using  it  further,  and  brought  an  action  in 
1896  to  determine  his  right.     He  could  use  the  road. 

Islands:  Islands  and  accumulations  of  land,  formed  in  the  beds 
of  streams  which  are  navigable,  belong  to  the  state,  if  there  is  no 
title  or  prescription  to  the  contrary.  An  island,  or  accumulation  of 
land  formed  in  a  stream  which  is  not  navigable,  belongs  to  the 
owner  of  the  shore  on  that  side  where  the  island,  or  accumulation, 
is  formed;  or,  if  not  formed  on  •ne  side  only,  then  to  the  owners 
of  the  shore  on  the  two  sides,  divided  by  an  imaginary  line  drawn 
through  the  middle  of  the  river.  If  a  stream,  navigable  or  not 
navigable,  in  forming  itself  a  new  arm,  divides  itself  and  surrounds 
land  belonging  to  the  owner  of  the  shore,  and  thereby  forms  an 
island,  the  island  belongs  to  such  owner. 

Land  formed  by  accretions  from  an  island  in  the  center  of  a 
navigable  stream  toward  the  bank,  yet  which  leaves  a  depression  or 
slough  dividing  the  island  from  the  mainland,  is  the  property  of  the 
state. 

Trees  whose  trunks  stand  wholly  upon  the  land  of  one  owner  be- 
long exclusively  to  him,  although  their  roots  grow  into  the  land  of 
another.  The  fruit  of  the  tree  belongs  to  the  owner  of  the  trunk, 
but  if  he  goes  upon  the  land  of  his  neighbor  to  pluck  the  fruit,  he 
becomes  a  trespasser.  The  adjoining  owner  has  the  right  to  lop  off 
the  roots  and  branches  of  a  tree  which  grow  into  or  overhang  his 
land,  or  to  pick  up  the  fruit  which  falls  upon  his  ground.  A  tree 
whose  trunk  is  upon  the  dividing  line  of  two  or  more  owners  be- 
longs to  them  in  common.  Neither  can  cut  it  down  without  the 
other's  consent,  nor  in  anywise  mutilate  even  the  portion  on  his 
own  ground,  if  the  tree  is  injured  by  it. 

It  is  a  misdemeanor  to  cut  dov*m,  destroy  or  injure  any  kind  of 
wood  or  timber,  standing  or  growing  upon  the  lands  of  another,  or 
to  carry  this  away — and  the  wrongdoers  should  pay  the  owner 
treble  the  value  of  the  wood,  as  damages. 

Consideration:  (See  Contracts.)  In  the  absence  of  fraud,  the 
amount  of  the  consideration  for  a  deed  is  immaterial.     A  valuable 


316 


REAL  PROPERTY 


consideration  is  such  as  money  or  the  like.  A  ffood  consideration  is 
such  as  that  of  blood  and  natural  affection. 

A  promise  to  furnish  support  to  the  grantor  for  life  is  a  good 
consideration.  This  may  be  oral  when  the  deed  has  actually  been 
delivered  and  part  of  the  services  have  been  performed.  If  the 
grantees,  after  years  of  personal  service,  had  refused  to  proceed 
further  with  the  contract,  the  grantor  could  undoubtedly  rescind 
and  the  court  would  then  balance  the  value  of  the  services  ren- 
dered and  the  money  paid  with  the  value  of  the  occupation  of  the 
land  to  the  grantees  and  reach  a  conclusion  as  to  the  terms  under 
which  a  cancellation  of  the  deed  would  be  just. 

Description:  The  lands  of  this  State  were  originally  surveyed  in 
one  of  two  ways:  First:  When  California  belonged  to  Mexico  it 
was  the  frequent  custom  for  officials  high  in  power  in  Mexico  to 
grant  parcels  of  land  to  their  friends  or  favorites,  giving  them 
(for  example)  as  much  as  they  could  walk  around  in  a  day,  or  as 
much  as  they  desired  in  a  certain  vicinity.  The  map  of  lands  in 
the  southern  part  of  California,  particularly,  is  frequently  dotted 
with  what  are  called  "grants,"  of  large  size  and  irregular  shape. 
By  reference  to  maps  which  show  the  contour  of  the  country  it 
will  be  found  that  these  grants  include  the  level  and  best  land  in 
these  various  vicinities,  leaving  the  washes,  hillsides  and  stony 
places  outside  of  the  grant.  It  was  these  grants  which  the  Mexican 
officials  gave   away. 


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" 

Second:       By    survey    of    the    United    States    Government    into 
township  and   ranges  with  their  sectional   subdivisions. 


REAL  PROPERTY 


317 


A  township  it)  36  sectioas.  each  a  mile 
sqttare.  A  sectioo  iu  64?^aCn!s.  Aqnartersec- 
tioof' half  a  mile  square,  is  160  acres.  An 
cisrhtU  of  a  section,  half  a  mile  Ioiqb,  north  and 
ftouib,  and  a  quarter  of  a  mile  wide,  is  80  acres. 
A  sixteenth  of  a  sectioo,  a  quarter  of  a  mile 
Ctinar:;,  is  40  acres. 

The  sections  are  all  numbered  1  to  36,  cora- 

menclnir  at  northeast 

corner,  thus  : 

The   sections   arc 

all   divided    in    qnar- 

ters,  which  are  named 

by  the  cardinal  points, 

as  iA  section  1.     The 

quarters   are    divided 

In   the  same  way,  as 

shown  in  the  smaller 

diagram.  The  description  of  a  forty-acre  lot  wonld 
read  :  The  south  half  of  the  west  half  of  the  southwest  quarter,  or  the  north- 
east quarter  of  the  uortbeaat  quarter,  as  the  case  miffht  be,  of  section  I  in  town- 
ship 24  north,  of  ran^e  7  west.  Mount  Diablo  Base  and  Meridian.  A  section  or 
quarter  section  will  sometimes  fall  short  and  sometimes  overrun  the  number  of  acres 
it  is  supposed  to  contain. 


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The  land  in  incorporated  cities  and  such  parcels  of  the  grants  as 
have  been  subdivided  is  usually  cut  into  blocks  and  these  in 
turn  into  lots  averaging  fifty  by  one  hundred  and  fifty  feet  in  size 
— all  located  by  means  of  a  certified  map.  It  frequently 
happens  that  the  technical,  legal  or  proper  description  is  not 
known  to  the  grantor,  or  is  not  easily  available.  In  which  case 
reference  may  be  made  in  such  a  way  as  to  distinguish  the  prop- 
erty from  any  other  property  in  that  county  .  The  Civil  Code  of 
this  State  has  quite  elaborate  rules  for  construing  the  descriptive 
parts  of  a  conveyance  when  its  meaning  is  doubtful. 

The  following  have  been  held  to  be  sufficient  descriptions:  "A  lot 
90x450  on  the  northwesterly  corner  of  A  and  B  streets,"  when  it 
was  shown  that  the  grantor  did  own  a  lot  on  that  corner,  and  that 
he  did  not  own  any  other  lot  anywhere.  "A  house  and  lot  of  land 
situated  on  Amity  Street,"  when  shown  at  the  trial  that  the  seller 
only  owned  at  the  time  one  lot  on  that  street  in  that  city.  "Forty 
acres  of  the  eighty  acre  tract  at  Biggs,"  where  it  was  shown  that 
the  contracting  parties  owned  only  one  certain  parcel  of  forty 
acres  there.     "H   of  Sec.   7-23-7,  and  all  of  Sec.   18-23-7   in   Syca- 


318  REAL  PROPERTY 


more  Township."  "One  city  block  between  Main  and  Market 
streets  produced,  beinj?  the  second  block  west  of  Tule  Street  in  the 
City  of  Stockton." 

Restrictions:  (See  Reservations.)  There  is  a  distinction  be- 
tween personal  covenants  existing  solely  between  the  seller  and  the 
buyer,  and  easements,  which  operate  against  the  general  public, 
either  forever,  or  for  a  definite  term.  The  following  are  not  re- 
strictions, but  are  only  personal  covenants: 

"Subject  to  the  following  restriction;  that  no  outbuildings  or 
sheds  shall  ever  be  erected  westerly  of  the  main  building  or  a 
greater  height  than  those  now  standing  on  it."  "Upon  condition 
that  the  granted  premises  shall  be  used  for  no  other  purposes  than 
those  for  which  they  are  now  used — namely,  for  bathing  and  boat- 
ing upon  the  beach."  "It  is  provided  and  covenanted  as  a  coven- 
ant running  with  the  land  herein  conveyed  that  certain  hotel  build- 
ing carefully  specified  shall  be  erected  upon  these  premises 

And  if  the  hotel  shall  be  removed  by  fire,  the  parties  of  the  first 
part  shall  rebuild  such  hotel  ....  and  upon  failure  to  do  so,  his 
heirs  or  a.ssigns,  shall  reconvey  the  said  premises  to  the  seller." 
"This  deed  is  given  and  accepted  upon  the  express  understanding 
that  the  party  of  the  first  part  will  never  himself  erect  any  struc- 
ture within  five  feet  of  the  land  conveyed." 

It  has  often  been  decided  that  where  a  tract  of  land  is  subdivided 
into  lot.s,  and  those  lots  are  conveyed  to  separate  purchasers,  sub- 
ject to  conditions  which  are  of  a  nature  to  operate  as  inducements 
to  the  purchaser,  and  to  give  to  each  purchaser  the  benefit  of  a 
general  plan  of  building  or  occupation,  so  that  each  shall  have  at- 
tached to  his  own  lot  a  right  in  the  nature  of  an  easement  in 
the  lots  of  others,  a  right  is  thereby  acquired  by  each  buyer  which 
he  may  enforce  against  any  other  buyer.  Restrictions  are  valid 
and  enforceable  as  long  as  the  grantor  continues  to  own  any  part  of 
the  tract. 

The  following  is  a  valid  restriction:  "That  no  building  whatever 
except  a  private  residence,  with  the  customary  outbuildings,  includ- 
ing a  private  stable,  shall  be  erected,  placed  or  permitted  on  said 
premises  or  any  part  thereof,  and  that  such  building  shall  be  used 
as  a  private  residence  only,  and  shall  cost  ,and  be  reasonably  worth, 
not  less  than  ($....)  and  shall  be  located  not  less  than  (....)  feet 
from  the  front  street  line  of  said  lot  .  .  .  and  it  is  further  agreed 


REAL  PROPERTY  319 


that  no  barn  or  shed,  or  other  building  shall  be  located  or  built 
closer  than  ninety  feet  from  the  said  front  line  of  said  lot.  That 
any  breach  of  the  foregoing  conditions,  occurring  after  the  de- 
livery of  this  deed,  shall  have  the  effect  of  forfeiting  the  title  of 
the  grantee  and  his  assigns,  and  that  thereupon  his  title  to  said 
real  property  shall  revert  to  the  grantor." 

Illustration:  A  subsequent  purchaser  built  a  three-room  shack, 
costing  not  over  $800,  on  the  rear  of  a  lot,  and  no  other  buildings, 
and  lived  in  it.  The  Court  decided  that  this  was  a  violation  of  the 
terms  of  the  restriction,  and  that  the  grantor  had  the  right  to  a 
reconveyance  as  long  as  he  continued  to  own  a  part  of  the  tract 
for  the  benefit  of  which  the  restriction  was  exacted.  But  would  it 
be  a  violation  if  the  purchaser  erected  a  stable  or  other  outbuild- 
ing and  lived  in  it  during  th«  time  the  residence  was  being  con- 
structed?     Not  decided. 

Restrictive  agreements  of  this  kind  will  not  be  enforced  where 
under  all  the  circumstances  of  the  case  the  granting  of  the  relief 
sought  would  be  inequitable. 

There  was  a  set-back  clause  of  twenty  feet,  and  the  purchaser 
(buying  on  installments  )  erected  a  building  within  eight  feet  of 
the  front  line  of  the  lot;  but  the  seller  had  full  knowledge  that 
this  building  was  being  so  built,  and  did  not  object  to  it;  on  the 
contrary,  his  agent  said  it  "would  be  all  right;"  it  was  held  that 
an  injunction  would  not  be  permitted  compelling  the  owner  to  set 
this  building  back. 

Reservations  and  Exceptions:  (See  Restrictions)  .  The  differ- 
ence between  a  reservation  and  an  exception  in  this:  A  reserva- 
tion is  of  something  taken  back  out  of  that  which  is  granted,  such 
as  a  right  or  privilege.  It  is  to  be  interpreted  in  favor  of  the 
grantor.  An  exception  is  always  something  withheld  from  the 
estate  and  not  granted  at  all,  so  that  the  title  to  the  thing  excepted 
remains  in  the  grantor. 

A  clause  retaining  in  the  grantor  the  right  to  enter  upon  the 
land  and  cut  and  remove  growing  timber  would  be  a  reservation. 
In  this  case  the  title  to  the  standing  trees  passes  to  the  grantee. 
But  the  following  clause  is  an  exception,  and  title  to  the  timber 
remained  in  the  grantor:  "With  the  exception  of  the  timber  on 
said  land,  which  I  reserve  for  my  own  use." 

REVERSION  is  a  clause  in  a  grant  by  which  the   title   to   the 


320  REAL  PROPERTY 


property  grranted  will  return  automatically  to  the  j^rantor,  if  cer- 
tain thingfs  are  done,  or  not  done,  within  certain  specified  times. 
This  frequently  occurs  in  rights  of  way  to  railway  corporations,  by 
which  the  right  fails  upon  abandonment  of  the  road.  The  follow- 
ing are  examples  of  the  language  necessary  to  constitute  a  re- 
version : 

"Shall  in  like  manner  at  the  legal  expiration  of  the  said  con- 
tract revert  to  the  said  party  of  the  first  part,  his  heirs  or  assigns, 
anything  contained  to  the  contrary  notwithstanding."  Nothing 
could  be  added  to  more  clearly  express  the  intent  of  the  grantor. 
The  duration  of  the  estate  or  easement  granted  was  definite  and 
precise  and  was  one  limited  for  years  and   not  in   fee. 

"All  the  foregoing  conditions  are  hereby  declared  to  be  conditions 
upon  which  the  title  of  the  said  party  of  the  second  part  to  the 
said  strip  of  land  so  agreed  to  be  conveyed,  and  dependant,  and  upon 
breach  of  the  said  conditions,  or  any  of  them,  the  said  strip  of  land 
shall  revert  unto  the  said  party  of  the  first  part,  his  heirs  and 
assigns." 

Title  is  not  the  property  itself,  but  is  rather  the  means  by  which 
it  is  held.  It  is  acquired  by  (1)  operation  of  law,  or  (2)  by  descent, 
or  (3)  by  purchase. 

Titles  by  operation  of  law  are  in  turn  acquired  on  one  of  eight 
ways:      (1)    by   ACCRETION    (which   see);    (2)    by   abandonment; 

(3)  by  prescription;  (4)  by  ADVERSE  POSSESSION  (which  see); 
(5)  by  ESCHEAT  (which  see);  (6)  by  forfeiture;  (7)  by  aliena- 
tion;  (8)    by  marriage.      (Compare  also  Personal   Property  Titles.) 

(2)  ABANDONMENT  is  what  the  owner  of  real  estate  may  ac- 
quire when  some  easement  is  given  up — as  a  right  of  way  for  a 
railroad,  which  has  ceased  to  be  used.  But  the  mere  fact  that  it 
is  no  longer  used  will  not  be  enough.  There  must  be  some  actual 
act  of  abandonment,  as    (in   this  instance)    of  taking  up   the  rails. 

(6)  FORFEITURE  is  where  the  grantee  has  agreed  to  perform 
certain  things,  or  forfeit  the  land  if  he  does  not. 

(7)  ALIENATION  may  be  either  voluntary  or  involuntary.  In- 
voluntary is  that  acquired  by  the  act  of  some  one  other  than  the 
former  owner  of  the  property,  such  as  (1)  by  execution  (which 
see,  (2)  by  judicial  decree  and  by  eminent  domain   (which  see)   and 

(4)  tax  title   (which  see). 

Title  by  voluntary  alienation  is  that  by  devise  and  by  grant.    By 


KEAL  PROPERTY  321 


devise  is  that  acquired  at  the  death  of  the  devisor.  (See  Succession; 
Deeds.) 

The  registration  of  titles  has  become  so  thoroughly  imbedded  in 
our  system  of  dealing  v/ith  lands  that  a  title  which  cannot  be  traced 
and  established  by  some  form  of  public  record  is  practically  un- 
merchantable. Parties  rely  for  the  proof  of  their  titles  upon  the 
chain  of  title  which  will  be  disclosed  by  an  examination  of  the 
records. 

"Satisfactory  Title"  means  one  which  is  acceptable  to  the  buyer; 
"Valid  Title,"  "Perfect  Title,"  "Perfected  Title,"  "Title  which  is 
not  Defective" — all  mean  "a  title  fairly  deducible  of  record." 
"Title  Guaranteed"  means  "that  the  owner  had  a  good  and  sufficient 
title  free  from  litigation,  palpable  defects  and  grave  doubts,  fairly 
deducible  of  record  and  unincumbered." 

B  and  C  agreed  in  writing  to  exchange  houses;  each  took  posses- 
sion of  the  other's  house,  and  were  to  convey  titles  at  a  future 
day.  Before  that  day  arrived,  C's  original  house  burned,  and  the 
next  day,  the  courthouse  burned,  destroying  all  the  records.  C 
was  thus  unable  to  procure  a  title  or  a  guarantee  in  time,  and  was 
therefore  compelled  to  take  back  the  lot  with  the  burned  house  and 
to  restore  B's  original  house  to  him.  Several  similar  circumstances 
happened  on  account  of  the  San  Francisco  fire  in  1906. 

INCUMBRANCE  upon  real  estate  is  more  popularly  known  under 
the  term  "A  cloud  upon  the  title,"  such  as  taxes,  assessments,  and 
all  liens — as  attachments,  judgments,  mechanics'  liens,  etc.;  or  pro- 
hibiting the  use  of  firearms,  or  the  sale  of  spirits  upon  the  prem- 
ises; building  restrictions;  a  right  of  way  for  pipes  and  ditches  for 
irrigation  purposes,  or  a  reservation  permitting  the  construction  of 
a  railway. 

When  an  agreement  is  made  to  convey  land — ^without  any  men- 
tion as  to  incumbrances — there  is  an  implied  agreement  that  there 
shall  be  a  good  title  conveyed;  and  if  one  incumbrance  is  men- 
tioned, there  is  an  implied  agreement  that  there  shall  be  no  others. 
If  the  seller  cannot,  or  will  not,  give  the  title  which  he  agreed  to, 
the  buyer  may  do  one  ef  two  things:  (1)  Insist  upon  that  title 
and  refuse  to  purchase;  or,  (2)  Take  such  title  as  the  seller  does 
give  and  then  demand  an  adjustment  of  the  payments  in  such  a 
manner  as  to  protect  as  far  as  possible  against  loss  from  the  de- 
fects in  the  title.     If  incumbrances  consist  of  liens  upon  the  land. 


322  REAL  PROPERTY 


the  buyer  may  deduct  from  the  purchase  price  the  amount  neces- 
sary to  pay  the  liens. 

QUIET  TITLE:  An  action  may  be  brought  by  any  person 
against  another  who  claims  an  estate,  or  interest  in  real  property, 
adverse  to  him — for  the  purpose  of  deciding  such  adverse  claim. 
The  land  owner  need  not  be  in  possession  when  beginning  the  ac- 
tion, or  he  may  have  only  a  leasehold  interest,  and  may  sue  the 
person  owning  the  fee.  Although  an  estate  for  years  is  usually  per- 
sonal property  and  the  title  to  personal  property  cannot  be  quieted 
— yet  in  the  above  instance  it  is  real  property. 

If  brought  to  quiet  title  to  a  tract  of  land  claimed  to  have  been 
procured  by  fraud  and  undue  influence,  it  may  be  commenced 
vnthin  five  years  from  the  discovery  of  the  fraud. 

CERTIFICATE  OF  TITLE:  Throughout  this  State,  many  title 
insurance  and  title  guarantee,  title  abstract  and  trust  companies 
have  practically  obtained  absolute  control  of  furnishing  for  the 
buyer  what  is  commonly  known  as  a  certificate  of  title.  The  cer- 
tificates of  many  of  the  these  companies  contain  clauses  similar  to 
the  following: 

"The  Certificate  does  not  include  an  examination  of: 

First:  Municipal  Records  and  Liens  created  by  the  act  of  any 
city,  other  than  the  City  of  . 

Second :      Proceedings    to    construct    sewers,    improve    and    open 

streets  and  alleys,  in  the  City  of  ,  until  said  streets  or  alleys 

are  established,  and  the  amounts  of  the  benefits  or  liabilities  as- 
sessed are  determined,  and  by  notice  of  record,  become  a  lien  under 
the  statute. 

Third:  Irrigation,  Drainage,  Reclamation,  Protection,  Sanitary 
and  Levee  District  Records. 

Fourth:  Mining  Locations,  Existing  Roads,  Reservoir  Sites, 
Easements  for  Water  Locations  and  Rights  reserved  in  U.  S. 
Patents." 

GUARANTEE  OF  TITLE:  Some  companies  issue  what  they  call 
a  "guarantee  of  title,"  which  is  intended  to  be  an  insurance  of  the 
validity  of  the  title — but,  an  action  founded  upon  a  contract,  obli- 
gation or  liability,  evidenced  by  a  certificate,  or  abstract  or  guar- 
antee of  title  of  real  property,  or  by  a  policy  of  title  insurance, 
must  be  commenced  within  two  years  from  the  time  of  the  dis- 
covery of  the  loss  or  damage  suffered  by  the  party  injured. 


KEAL  PROPERTY  323 


ABSTRACT  OF  TITLE:  Is  a  condensed  record  of  the  trans- 
actions which  have  affected  the  property  since  the  United  States 
patent,  showing  all  deeds,  mortgages,  incumbrances,  actions  at 
law  and  anything  else  which  has  tended  to  affect  the  title.  With 
such  an  abstract  in  his  possession,  an  owner  may  obtain  the  opinion 
of  any  good  land  lawyer  as  to  the  present  condition  of  the  title. 

TORRENS  TITLE  LAW:  In  an  endeavor  to  simplify  the  regis- 
tration of  land  titles  and  to  get  away  from  burdensome  charges,  the 
voters  of  this  State  passed  an  amendment  to  the  general  laws — in 

1915 known  as  the  TORRENS  TITLE  LAW.     A  copy  of  this  act 

would  require  too  much  space  for  the  limits  of  this  book,  so  I  will 
only  quote  the  explanation  of  its  merits  (as  given  by  the  President 
of  the  Torrens  Land  Law  League)  and  refer  my  readers  to  the  act 
itself  for  details,  and  to  a  good  lawyer  to  carry  them  out. 

The  Torrens  law  is  a  modem  system  of  registering  titles  to  land. 
It  does  away  with  the  endless  fees  of  title  companies  for  repeated 
examinations  of  title.  The  entire  expense  of  transfer  and  registra- 
tion of  title  to  real  estate  under  the  Torrens  law  will  be  one  dollar. 
Under  the  system,  the  recorder  enters  the  certificate  in  a  bound 
volume  kept  in  his  office,  which  names  the  owner  and  shows  all 
mortgages,  liens,  etc.  A  duplicate  certificate  given  the  owner  con- 
stitutes, with  owner's  signature,  absolute  evidence  of  title. 

To  find  the  real  owner  or  the  condition  of  the  title  of  any  piece 
of  property  under  the  Torrens  system,  it  will  be  necessary  to  ex- 
amine only  one  document — the  Torrens  certificate.  No  encum- 
brance is  valid  against  Torrens  property  unless  noted  on  the 
certificate. 

When  property  is  sold  or  mortgaged,  the  duplicate  must  be  pro- 
duced and  the  signature  of  the  owner  taken  and  compared,  making 
fraud  almost  impossible  under  the  Torrens  system. 

A  state  title  assurance  fund  is  created,  not  by  taxation,  but  from 
fees  paid  by  those  using  the  system,  and  the  state  insures  the  title 
forever.  It  substitutes  state  title  insurance  for  private  title  in- 
surance. 

A  transfer  of  title  or  a  loan  can  be  made  in  one  hour's  time, 
making  an  escrow  in  most  cases  unnecessary.  When  necessary,  it 
can  be  placed  with  a  bank  or  trust  company  and  a  note  made  on 
the  Torrens  certificate  that  such  an  escrow  is  being  held. 

A  Torrens  title  requires  a  judicial  decision  when  the  property  is 


324  REAL  PROPERTY 


first  placed  under  the  act,  giving  the  best  foundation  for  the  be- 
ginning of  the  system  and  reducing  losses  and  fraud  to  a  minimum. 
It  will  make  "tax  titles"  practically  unknown,  because  the  owner 
will  be  notified  when  taxes  or  assessments  are  due  and  thus  prevent 
the  sale  of  the  property  for  payment. 

The  present  system  furnishes  no  means  by  which  the  real  owner 
of  the  property  may  be  recognized  and  the  buyer  must  simply  take 
the  risk,  even  though  he  is  investing  the  earnings  of  a  lifetime. 
Under  the  Torrens  system  there  is  absolute  evidence  of  ownership. 

ASSIGNMENT  OF  CONTRACT  OF  SALE:  A  contract  for  the 
sale  of  real  property  may  be  assigned  in  th€  same  manner  and 
with  the  same  effect  as  any  other  contract.  The  assignment  car- 
ries with  it,  of  course,  only  such  right,  title,  and  interest  as  the 
assignor  may  have  in  the  contract  at  the  time  of  the  assignment. 
This  is  popularly  called  his  "equity,"  although  in  reality  there  is 
no  recognized  equity  in  the  realty  involved  in  a  contract  of  sale. 
There  may  be  as  many  assigrnment  of  the  contract  as  there  are 
new  owners  of  the  so-called  equity;  that  is,  every  assignee  may  as- 
sign his  interest  to  another  person.  Either  sellor  or  buyer  may 
assign  his  right,  but  an  assignment  by  the  buyer  will  not  release 
him  from  his  obligation  to  pay.  The  assignment  should  be  re- 
corded in  the  same  recorder's  office  where  the  original  contract  is 
recorded.  But  if  the  original  contract  is  not  recorded,  the  as- 
signment of  it  cannot  be.   (See  Recordation.) 

(In  an  agreement  to  sell  real  property  there  was  a  clause  by 
which  the  buyer  was  to  be  the  "exclusive  judge  as  to  whether  or 
not  the  title  to  said  lands  is  free  from  all  defects,  liens,  incum- 
brances, taxes  and  assessments  whatsoever,  and  as  to  whether  or 
not  he  is  willing  to  accept  the  same."  He  afterwards  assigned  this 
right  of  purchase,  and  the  Court  ruled  that  he  had  also  assigned 
the  right  of  judging.) 

The  damages  caused  by  a  breach  of  an  agreement  to  convey  an 
estate  in  real  property,  is  deemed  to  be  the  price  paid,  and  the 
expenses  properly  incurred  in  examining  the  title  and  preparing 
the  necessary  papers,  with  interest  on  these  expenses;  by  adding 
also  (in  case  of  bad  faith)  the  difference  between  the  price  agreed 
to  be  paid,  and  the  value  of  the  estate  agreed  to  be  conveyed,  at 
the  time  of  the  breach,  as  well  as  the  expense  properly  incurred 
in  preparing  to  enter  upon  the  land. 


ERRATA: — On  page  325  the  following  paragraph  should  be  in- 
serted in  place  of  the  paragraph  now  appearing  after  the  word 
"Reasonable": 

RESCISSION:      See  Contracts;  Fraud. 

An  agreement  that  errors  of  description  shall  not  avoid  a  con- 
tract, or  shall  be  the  subject  of  compensation  (or  both),  does  not 
take  away  the  right  of  rescission  for  fraud  nor  for  mistake,  where 
such  mistake  is  in  a  matter  essential  to  the  inducement  of  the 
contract,  and  is  not  capable  of  exact  and  entire  compensation. 

(The  balance  of  the  article  on  "Rescission"  is  on  page   327.) 

Please  carry  the  line  beginning  "Reasonable"  to  and  above  the 
line  beginning  "Reasonable  Time." 


324  REAL  PROPERTY 


first  placed  under  the  act,  giving  the  best  foundation  for  the  be- 
gfinning  of  the  system  and  reducing  losses  and  fraud  to  a  minimum. 
It  will  make  "tax  titles"  practically  unknown,  because  the  owner 
will  be  notified  when  taxes  or  assessments  are  due  and  thus  prevent 
the  sale  of  the  property  for  payment. 

The  present  system  furnishes  no  means  by  which  the  real  owner 

of    the    Oronertv    mav    h<»    rar^nnrr^^'^^A 1    il--    » 


ttsaign  nis  right,  but  an  assignment  by  the  buyer  will  not  release 
him  from  his  obligation  to  pay.  The  assignment  should  be  re- 
corded in  the  same  recorder's  office  where  the  original  contract  is 
recorded.  But  if  the  original  contract  is  not  recorded,  the  as- 
signment of  it  cannot  be.   (See  Recordation.) 

(In  an  agreement  to  sell  real  property  there  was  a  clause  by 
which  the  buyer  was  to  be  the  "exclusive  judge  as  to  whether  or 
not  the  title  to  said  lands  is  free  from  all  defects,  liens,  incum- 
brances, taxes  and  assessments  whatsoever,  and  as  to  whether  or 
not  he  is  willing  to  accept  the  same."  He  afterwards  assigned  this 
right  of  purchase,  and  the  Court  ruled  that  he  had  also  assigned 
the  right  of  judging.) 

The  damages  caused  by  a  breach  of  an  agreement  to  convey  an 
estate  in  real  property,  is  deemed  to  be  the  price  paid,  and  the 
expenses  properly  incurred  in  examining  the  title  and  preparing 
the  necessary  papers,  with  interest  on  these  expenses;  by  adding 
also  (in  case  of  bad  faith)  the  difference  between  the  price  agreed 
to  be  paid,  and  the  value  of  the  estate  agreed  to  be  conveyed,  at 
the  time  of  the  breach,  as  well  as  the  expense  properly  incurred 
in  preparing  to  enter  upon  the  land. 


RECEIVER  325 


The  damages  caused  by  a  breach  of  an  agreement  to  purchase  an 
estate  in  real  property,  is  deemed  to  be  any  excess  of  the  amount 
which   would   have   been    due   the   seller,   under   the    contract,   over 
the  value  of  the  property  to  him. 
Real   Estate:      See   Real   Property. 

Reasonable:  Throufrhout  this  entire  book  will  be  found  the  word 
the  rig:ht  of  rcEcission  for  fraud,  nor  for  mistake  is  in  a  matter  es- 
sential to  the  inducement  of  the  contract,  and  is  not  capable  of  exact 
and  entire  compensation. 

Rescission,  when  not  effected  by  consent,  can  be  accomplished 
only  by  the  use  (on  the  part  of  the  party  rescinding),  of  reasonable 
diligence  to  comply  with  the  following  rules:  1.  He  must  rescind 
promptly,  upon  discovering  the  facts  which  entitle  him  to  rescind, 
if  he  is  free  from  duress,  menace,  undue  influence,  or  disability, 
and  is  aware  of  his  right  to  rescind;  and,  2.  He  must  restore  to  the 
other  party  everything  of  value  which  he  has  received  from  him 
under  the  contract;  or  must  offer  to  restore  the  same,  upon  condi- 
tion that  such  party  shall  do  likewise,  unless  the  latter  is  unable,  or 
positively  refuses  to  do  so. 

Quit  Claim  Deed:     See  Deeds;  Quiet  Titk;  Real  Estate. 
Receipts:     See  Payment;  Checks;  Sales. 
Reasonable  Time:      Sec  Negotiable  Instruments,  ^3266b. 
"reasonable,"  such  as  "reasonable  care,"  "reasonable  doubt,"  "rea- 
sonable amount,"  etc.     This  word  has  probably  caused  more  suits 
of  law  than  any  other,  because  it  is  impossible  to  foresee  what  is 
"reasonable"  in  any  case,  unless  that  precise  case,  with  all  its  pecul- 
iar circumstances  i.s  brought  to  the  attention  of  a  court.     The  gen- 
eral rule  would  be  that  in  each  case,  what  is  or  is  not  reasonable 
must  be  decided  by  taking  into  consideration  all  the  circumstances 
of  such  particular  case. 

Receiver,  Appointment  of.  A  receiver  may  be  appointed  by  the 
court  in  which  an  action  is  pending,  or  by  the  judge  of  it.  1.  In  an 
action  by  a  vendor  to  vacate  a  fraudulent  purchase  of  property,  or 
by  a  creditor  to  subject  any  property  or  fund  to  his  claim,  or  between 
partners  or  others  jointly  owning  or  interested  in  any  property  or 
fund,  on  the  application  of  the  plaintiff,  or  of  any  party  whose  right 
to  or  interest  in  the  property  or  fund,  or  the  proceeds  of  it  is  proba- 
ble, and  where  it  is  shown  that  the  pi-operty  or  fund  is  in  danger  of 
being  lost,  removed,  or  materially  injured;   2.     In  an   action  by  a 


326  RESTRAINT  OF  TRADE 


mortgagee  for  the  foreclosure  of  his  mortgage  and  sale  of  the  mort- 
gaged property,  where  it  appears  that  the  mortgaged  property  is 
in  danger  of  being  lost,  removed,  or  materially  injured,  or  that  the 
condition  of  the  mortgage  has  not  been  performed,  and  that  the  prop- 
erty is  probably  insufficient  to  discharge  the  mortgage  debt;  3. 
After  judgment,  to  carry  the  judgment  into  effect;  4.  After  judg- 
ment, to  dispose  of  the  property  according  to  the  judgment,  or  to 
preserve  it  during  the  pendency  of  an  appeal,  or  in  proceedings  in 
aid  of  execution,  when  an  execution  has  been  returned  unsatisfied, 
or  when  the  judgment  debtor  refuses  to  apply  his  property  in  satis- 
faction of  the  judgment.  5.  In  the  cases  v/hen  a  corporation  has 
been  dissolved,  or  is  insolvent,  or  in  imminent  danger  of  insolvency, 
or  has  forfeited  its  corporate  rights;  6.  In  an  action  of  unlawful 
detainer,  in  those  cases  in  which  the  superior  court  has  exclusive 
original  jurisdiction.  7.  In  all  other  cases  where  receivers  have 
heretofore  been  appointed  by  the  usages  of  courts  of  equity.  No 
party,  or  attorney  of  a  party,  or  person  interested  in  an  action,  or 
related  to  any  judge  of  the  court  by  consanguinity  or  affinity  within 
the  third  degree,  can  be  appointed  receiver  in  it  without  the  written 
consent  of  the  parties,  filed  with  the  clerk.  If  a  receiver  is  ap- 
pointed upon  an  ex  parte  application,  the  court,  before  making  the 
order,  must  require  from  the  applicant  an  undertaking,  with  suffi- 
cient sureties,  in  an  amount  to  be  fixed  by  the  court,  to  the  effect 
that  the  applicant  will  pay  to  the  defendant  all  damages  he  may 
sustain  by  reason  of  the  appointment  of  such  receiver  and  the  entry 
by  him  upon  his  duties,  in  case  the  applicant  shall  have  procured 
such  appointment  wrongfully,  maliciously,  or  without  sufficient 
cause;  and  the  court  may,  in  its  discretion,  at  any  time  after  said 
appointment,  require  an  additional  undertaking.  Before  entering 
upon  his  duties,  the  receiver  must  be  sworn  to  perform  them  faith- 
fully, and  with  two  or  more  sureties,  approved  by  the  court  or  judge, 
execute  an.  undertaking  to  the  state  of  California,  in  such  sum  as 
the  court  or  judge  may  direct,  to  the  effect  that  he  will  faithfully 
discharge  the  duties  of  receiver  in  the  action  and  obey  the  orders  of 
the  court  in  it. 

Recordation:     See  Real  Estate. 

Reservation:    See  Real  Estate. 

Restraint  of  Trade.     See  Contracts;  Statute  of  Frauds;  Monopo- 
lies; Goodwill;  Partnership. 


SALES  327 


Rescission:  See  Fraud;  Contracts;  Agency.  A  party  to  a  contract 
may  rescind  in  the  following  case:  1.  If  the  consent  of  the  party 
rescinding  (or  of  any  party  jointly  contracting  with  him),  was  given 
by  mistake,  or  obtained  through  duress,  fraud  or  undue  influence, 
exercised  by  or  with  the  connivance  of  the  party  as  to  whom  he 
rescinds,  or  of  any  other  party  to  the  contract  jointly  interested 
with  such  party;  2.  If,  through  the  fault  of  the  party  as  to  whom 
he  rescinds,  the  consideration  for  his  obligation  fails,  in  the  whole 
or  in  part;  3.  If  such  consideration  becomes  entirely  void  from  any 
cause;  4.  If  such  consideration,  before  it  is  rendered  to  him,  fails 
in  a  material  respect,  from  any  cause;  or  5.  By  consent  of  all  the 
other  parties. 

Redemption:  See  Licn.^;;  Mortgage;  Chattel  Mortgage;  Trust  Deed; 
Contracts. 

Reference  in  Ca.*e  of  Need:  See  Negotiable  Instruments,  TI3212, 
3213,  3248,  3250. 

Remedy:     See  Actions. 

Repairs:     See  Landlord  and  Tenant. 

Repair  Man's  Lien:     See  Liens;  Accession;  Personal  Property. 

Replevin:     See  Claim  and  Delivery;  Personal  Property. 

Restraint  of  Trade:     See  Monopoly. 

Restrictions:     See  Real  Estate. 

Reversion:     See  Real  Estate. 

Revocation:     See  Real  Estate  Agents;  Contracts;  Wills. 

Right  of  Way:     See  Real  Estate,  118. 

Right  to  Fish:     See  Real  Property. 

Riparian  Rights:     See  Water  Law;  Real  Estate. 

Rooming  House:     See  Hotel;  Liens. 

Sabotage:     See  Syndicalism. 

Sailors:     See  Seamen. 

Salaries:  Garnishment  of;  .A,ttachment  of.  See  Actions;  Liens; 
Wages. 

Sales  OF  PERSONAL  PROPERTY.  See  Warranty;  Exchange; 
Title;  Personal  Property. 

A  sale  is  a  contract  by  which,  for  pecuniary  consideration,  called 
a  price,  one  transfers  to  another  an  interest  in  property.  The  sub- 
ject of  a  sale  must  be  property,  the  title  to  which  can  be  immediately 
transferred  from  seller  to  the  buyer. 

Where  a  sale  is  made  for  cash,  the  delivery  of  the  goods  and  pay- 


328  SALES 


meat  of  the  purchase  money  take  place  at  the  same  time.  If  the 
seller  delivers  the  goods,  believing  that  payment  is  to  be  made  at  once 
— and  does  not  at  once  receive  the  money — he  may  then  reclaim 
the  property  from  the  purchaser — provided,  of  course  that  he  has 
not  done  some  act  as  would  prevent  him  in  law  from  taking  such 
right.  It  frequently  happens  that  the  seller  will  deliver  the  goods, 
even  though  there  is  a  failure  to  fulfill  this  condition  of  payment. 
In  such  cases,  the  question  whether  delivery  is  to  be  considered  a 
waiver  of  the  condition  that  payment  must  be  made  before  title 
passes,  may  depend  upon  the  attendant  circumstances — this  being 
a  question  of  intention.  An  absolute  delivery  of  property  to  the 
buyer  without  demand  of  the  purchase  price  to  be  paid  then  and 
there,  is  presumptive  evidence  of  a  willingness  to  give  credit  to 
the  buyer,  and  that  he  is  not  expected  to  pay  at  once.  But  the  con- 
trary may  be  shown.  An  express  declaration  of  the  intention  to  in- 
sist upon  the  performance  of  the  condition  is  not  necessary,  but 
may  be  inferred  from  the  acts  and  attendant  circumstances.  If  the 
condition  of  cash  payment  is  not  waived,  the  title  does  not  pass  un- 
til payment  is  made. 

In  installment  sales  the  title  does  not  pass  by  issuing  and  sending 
the  purchaser  monthly  statements,  which  show  the  balance  yet  to  be 
paid  by  him;  nor  if  the  personal  property  is  affixed  to  real  property, 
and  the  real  property  then  mortgaged.      (See  Fixtures;  Mortgages.) 

An  agreement  to  sell  is  a  contract  by  which  one  engages,  for  a 
price,  to  transfer  to  another  the  title  to  a  certain  thing.  An  agree- 
ment for  sale  is  either:  1.  An  agreement  to  sell;  2.  An  agreement 
to  buy;  or,  3.     A  mutual  agreement  to  sell  and  buy. 

An  agreement  to  buy  is  a  contract  by  which  one  engages  to  accept 
from  another,  and  to  pay  a  price  for  the  title  to  a  certain  thing.  An 
agreement  to  sell  and  buy  is  a  contract  by  which  one  engages  to 
transfer  the  title  to  a  certain  thing  to  another,  who  engages  to  ac- 
cept the  same  from  him  and  to  pay  a  price  therefor.  Any  prop- 
erty which,  if  in  existence,  might  bo  the  subject  of  sale,  may  be  the 
subject  of  an  agreement  for  sale,  whether  in  existence  or  not.  As 
between  the  parties,  a  sale  may  be  made  without  either  payment,  or 
delivery,  such  as  a  sale  of  crops  running  through  a  series  of  years. 

No  sale  of  personal  property,  or  agreement  to  buy  or  sell — for  a 
price  of  $200  or  more,  is  valid  unless  (1)  the  agreement  or  some 
memorandum   of  it  is  in   writing,  and   signed  by  the  party  to  b« 


SALES  329 


charged  or  his  agent;  or  (2)  th«  buyer  accepts  and  receives  some 
part  of  the  thing  sold — or,  when  it  consists  of  a  thing  in  action — 
then  part  of  the  evidence  of  it;  or  (3)  the  buyer  pays  part  of  the 
price  at  the  time  of  the  sale.  An  agreement  to  manufacture  a  thing, 
from  material  furnished  by  the  manufacturer,  or  by  another  per- 
son, is  not  within  these  provisions. 

After  personal  property  has  been  sold,  and  until  the  delivery  is 
completed,  the  seller  has  the  rights  and  obligations  of  a  depositary 
for  hire,  except  that  he  must  keep  the  property,  without  charge,  until 
the  buyer  has  had  a  reasonable  opportunity  to  remove  it.  See  Hiring. 
If  a  buyer  of  personal  property  does  not  pay  for  it  according  to  con- 
tract, and  it  remains  in  the  possession  of  the  seller  after  payment 
is  due,  the  seller  may  rescind  the  sale,  or  may  enforce  his  lien  for 
the  price,  in  the  manner  prescribed  by  the  chapter  on  liens.  See 
Rescission ;  Liens.  One  who  sells  personal  property,  whether  it  v/as 
in  his  possession  at  the  time  of  sale  or  not,  must  put  into  a  condition 
fit  for  delivery,  and  deliver  it  to  the  buyer  within  a  reasonable  time 
after  demand,  unless  he  has  a  lien  on  it.     See  Liens. 

Personal  property  sold  is  deliverable  at  the  place  where  it  is  at  the 
time  of  the  sale  or  agreement  to  sell,  or  if  it  is  not  then  in  existence, 
it  is  deliverable  at  the  place  where  it  is  produced.  One  who  sells 
personal  property  must  bring  it  to  his  own  door,  or  other  convenient 
place,  for  the  acceptance  by  the  buyer,  but  further  transportation 
is  at  the  risk  and  expense  of  the  buyer. 

When  either  party  to  a  contract  of  sale  has  an  option  as  to  the 
time,  place,  or  manner  of  delivery,  he  must  give  the  other  party 
reasonable  notice  of  his  choice;  and  if  he  does  not  give  such  notice 
within  a  reasonable  time,  his  right  of  option  is  waived.  If  a  seller 
agrees  to  send  the  thing  sold  to  the  buyer,  he  must  follow  the  direc- 
tions of  the  latter  as  to  the  manner  of  sending,  or  it  will  be  at  his 
own  risk  during  the  transportation.  If  he  follows  such  directions, 
or  if,  in  the  absence  of  special  directions,  he  uses  ordinary  care  in  for- 
warding the  thing,  it  is  at  the  risk  of  the  buyer.  The  delivery 
of  a  thing  sold  can  be  oflFered  or  demanded  only  within  reasonable 
hours  of  the  day. 

Salvage:     See  Wrecks;  Lien  of  Wrecks. 

Satisfaction:     See  Accord  and  Satisfaction. 

Seals  are  not  necessary  in  this  state  to  the  validity  of  an  instru- 
ment  (as  they  are  in  many  other  states) — except,  of  course,  those 


330  SHIPS 


issued  by  a  court  of  record.      See  Negotiable  Instruments,  ^3087; 
Corporations;  Actions. 

Seller's  Lien:      See  Vendor's  Lien    (under  Liens). 

Separate  Property:     See  Husband  and  Wife;  Wills;  Succession. 

Shipper's  Load  and  Count:      See  Bill  of  Lading,  2128g. 

Shipper's  Count:     See  Bill  of  Lading,  2130c. 

Sheriff's   Deed:      See   Deeds. 

Seamen:  See  Liens;  Wages;  Shipping;  Wrecks;  Bottomry.  All 
persons  employed  in  the  navigation  of  a  ship,  or  upon  a  voyage,  other 
than  the  master  and  mate,  are  to  be  deemed  Seamen,  within  the 
meaning  of  this  law^. 

Ships:  See  Seamen;  Bottomry;  Insurance;  Respondentia;  Car- 
riers; Freightage;  Jettison;  Wrecks;  Bill  of  Lading;  Employer;  Rafts; 
Insurance;  Transfer. 

The  term  "ship  or  shipping,"  when  used  in  this  code,  includes 
steam  boats,  sailing  vessels,  canal  boats,  barges,  and  every  structure 
adapted  to  be  navigated  from  place  to  place  for  the  transportation 
of  merchandise  or  persons.  All  things  belonging  to  the  owners, 
which  are  on  board  a  ship,  and  are  connected  with  its  proper  use, 
for  the  objects  of  the  voyage  and  adventure  in  which  the  ship  is 
engaged  are  deemed  its  appurtenances.  Ships  are  engaged  either 
in  foreign  or  domestic  navigation,  or  in  the  fisheries.  Ships  are  en- 
gaged in  foreign  navigation  when  passing  to  or  from  a  foreign  coun- 
try; and  in  domestic  navigation  when  passing  from  place  to  place 
within  the  United  States.  A  ship  in  a  port  of  the  state  to  which  it 
belongs  is  called  a  domestic  ship;  in  another  port  it  is  called  a  for- 
eign ship.  The  registry,  enrollment,  and  license  of  ships  are  regu- 
lated by  acts  of  congress. 

If  a  ship  belongs  to  several  persons,  not  partners,  and  they  differ 
as  to  its  use  or  repair,  the  controversy  may  be  determined  by  any 
court  of  competent  jurisdiction.  Part  owners  of  a  ship  do  not,  by 
simply  using  it  in  a  joint  enterprise  become  partners  as  to  the  ship. 
If  the  owner  of  a  ship  commits  its  possession  and  navigation  to  an- 
other, that  other,  and  not  the  owner,  is  responsible  for  its  repairs 
and  supplies.  The  mate  of  a  ship  is  the  officer  next  in  rank  to  the 
master,  and  in  case  of  the  master's  disability  he  must  take  his  place. 
By  doing  so  he  does  not  lose  any  of  his  rights  as  mate. 

The  general  agent  for  the  owners,  in  respect  to  the  care  of  the 
ship  and  freight,  is  called  the  manager.     If  he  is  a  part  owner,  he 


SHIPS  331 


is  also  called  the  managing  owner.  Unless  otherwise  directed,  it  is 
the  duty  of  the  manager  of  a  ship  to  provide  for  the  complete  sea- 
worthiness of  a  ship;  to  take  care  of  it  in  port;  to  see  that  it  is 
provided  with  necessary  papers,  with  a  proper  master,  mate,  and 
crew,  and  supplies  of  provisions  and  stores.  A  managing  ov/ner  is 
presumed  to  have  no  right  to  compensation  for  his  own  services. 

A  marine  carrier  is  liable  in  like  manner  as  an  inland  carrier, 
except  for  loss  or  injury  caused  by  the  perils  of  the  sea  or  fire,  and 
its  liability  is  further  regulated  by  acts  of  congress.  Perils  of  the 
sea  are  from:  1.  Storms  and  waves;  2.  Rocks,  shoals,  and  rapids; 
3.  Other  obstacles,  though  of  human  origin ;  4.  Changes  of  climate ; 
5.  The  confinement  necessary  at  sea;  6.  Animals  peculiar  to  the 
sea;  7.     All  other  dangers  peculiar  to  the  sea. 

The  master  of  a  ship  is  a  general  agent  for  its  owner  in  all  mat- 
ters concerning  the  same.  He  has  authority  to  borrow  money  on 
the  credit  of  its  owner,  if  it  is  necessary  to  enable  him  to  complete 
the  voyage,  and  if  neither  the  owner  or  his  proper  agent  for  such 
matters  can  be  consulted  without  injurious  delay.  During  a  voyage, 
he  is  a  general  agent  for  each  of  the  owners  of  the  cargo,  and  l^-as 
authority  to  do  whatever  they  might  do  for  the  preservation  of  their 
respective  interests,  but  cannot  sell  or  hypothecate  the  cargo,  ex- 
cept in  the  cases  mentioned  in  this  article.  He  may  procure  all  its 
necessary  repairs  and  supplies,  may  engage  cargo  and  passengers 
for  carriage,  and,  in  a  foreign  part,  may  enter  into  a  chai*ter  party; 
and  his  contracts  for  those  purposes  bind  the  owner  to  the  full 
amount  of  the  value  of  the  ship  and  freightage.  He  may  hypothecate 
the  ship,  freightage,  and  cargo  and  sell  part  of  the  cargo,  in  the  cases 
prescribed  by  the  articles  on  bottomry  and  respondentia,  and  in  no 
others;  except  that  the  master  may  also  sell  the  cargo,  or  any  part 
of  it,  short  of  the  port  of  destination,  if  found  to  be  in  such  perishable 
nature,  or  in  such  damaged  condition  that  if  it  is  left  on  board  or 
reshipped  it  would  be  entirely  lost,  or  would  seriously  endanger 
the  interests  of  its  owner.  When  a  ship,  whether  foreign  or  domes- 
tic, is  seriously  injured,  or  the  voj'^age  is  otherwise  broken  up,  be- 
yond the  possibility  of  pursuing  it,  the  master,  in  case  of  necessity, 
may  sell  the  ship  without  instructions  from  owners,  unless  by  the 
earliest  use  of  ordinary  means  of  communication  he  can  inform 
the  owners,  and  await  their  instructions.  He  may  sell  the  cargo,  if 
the  voyage  is  broken  up  beyond  the  possibility  of  pursuing  it,  and 


3312  SlGXATdBK 


no  other  ship  can  be  obtained  to  carry  it  to  ita  destination, — and 
the  sale  is  otherwise  absolutely  necessary.  In  case  of  ita  capture, 
he  may  engage  to  any  person  to  pay  a  ransom  for  it,  in  money  or  in 
part  of  the  cargo,  and  his  engagement  will  bind  the  ship,  freightage 
and  cargo.  His  power  to  bind  its  owner,  or  the  owners  of  the  cargo, 
ceases  upon  the  abandonment  of  the  ship  and  freightage  to  insurers. 
Unless  otherwise  expressly  agreed,  or  unless  the  contracting  parties 
give  exclusive  credit  to  the  owner,  the  master  of  a  ship  is  person- 
ally liable  upon  his  contracts  relative  to  it,  even  when  the  owner  is 
also  liable.  The  master  of  a  ship  is  liable  to  third  persons  for  the 
acts  or  negligence  of  persons  employed  in  its  navigation,  whether 
appointed  by  him  or  not,  to  the  same  extent  as  the  owner  of  the 
ship. 

The  owner  of  a  ship  is  not  responsible  for  the  negligence  of  a 
pilot  whom  he  is  bound  by  law  to  employ;  but  if  he  is  allowed  an 
option  between  pilots,  some  of  whom  are  competent,  or  is  required 
only  to  pay  compensation  to  a  pilot,  whether  he  employs  him  or  not, 
he  is  not  responsible  to  third  persons.  The  owner  of  a  ship  is  bound 
to  pay  to  the  owner  of  her  cargo  the  market  value  at  the  time  of 
arrival  of  the  ship  at  the  port  of  her  destination,  of  that  portion  of 
her  cargo  which  has  been  sold  to  enable  the  master  to  pay  the  neces- 
sary repairs  and  supplies  of  the  ship. 

A  ship's  manager  has  power  to  make  conti-aets  requisite  for  the 
performance  of  his  duties  as  such,  to  enter  into  charter  parties,  or 
make  contracts  for  carriages;  and  to  settle  for  freightage  and  adjust 
averages.  Without  special  authority  a  ship's  manager  cannot  borrow 
money  or  give  up  the  lien  for  freightage,  or  purchase  a  cargo,  or 
bind  the  owners  of  the  ship  to  an  insurance. 

Every  person  who  wilfully  and  maliciously  cuts,  breaks,  injures, 
sinks,  or  sets  adrift  any  vessel  of  less  than  ten  gross  tons,  the  prop- 
erty of  another,  is  guilty  of  a  misdemeanor.  Every  person  who 
wilfully  and  maliciously  cuts,  breaks,  or  injures  any  vessel  of  ten 
grross  tons  and  upward,  the  property  of  another,  is  guilty  of  a  mis- 
demeanor. Every  person  who  wilfully  and  maliciously  sinks  or  sets 
adrift  any  vessel  of  ten  gross  tons  and  upward,  the  property  of  an- 
other, is  guilty  of  a  felony. 

Shipwreck:    See  Deposit;  Wrecks;  Ships;  Seamen. 

Signature:    See  Real  Estate;  Negotiable  Instruments,  K3082,  3096, 


STATUTE  OF  FRAUDS  333 


3098,  3099,  3100,  3101,  3102,  3103,  3112,  3136,  3145,  3240.  A 
signature  includes  a  mark.  When  the  person  cannot  write,  his  name 
is  written  near  the  mark  he  makes,  by  some  other  person  who  writes 
his  own  name  as  a  witness  (John  Smith,  his  x  mark) ;  in  such  a  case, 
if  it  is  desired  that  this  mark  be  used  in  a  sworn  statement  or  as  an 
acknowledgment — there  must  be  two  witnesses,  each  of  whom  sub- 
scribes his  name  to  it. 

SUnder:     See  Privileged  Communications. 

Specific  Performance:  See  Real  Estate;  Personal  Property;  Bill 
of  Lading,  2129f. 

Specific  Enforcement:  The  following  obligations  can  not  be  spe- 
cifically enforced: 

1.  An  obligation  to  render  personal  service; 

2.  An  obligation  to  employ  another  in  personal  service; 

3.  An  agreement  to  submit  a  controversy  to  arbitration; 

4.  An  agreement  to  perform  such  an  act  which  the  party  has  not 
power  lawfully  to  perform  when  required  to  do  so; 

5.  An  agreement  to  procure  the  act  or  consent  of  the  wife  of  the 
contracting  party,  or  any  other  third  person ;  or, 

6.  An  agreement,  the  terms  of  which  are  not  sufficiently  certain 
to  make  the  precise  act  which  is  to  be  done  clearly  ascertainable. 

7.  An  agreement  to  deliver  certain  personal  property. 

Statute  of  Frauds:  See  Transfer;  Personal  Property;  Sales;  Real 
Estate. 

In  the  following  cases  the  agreement  is  invalid,  unless  the  same  or 
some  note  or  memorandum  of  it  is  in  writing,  and  subscribed  by  the 
party  charged,  or  by  his  agent.  Evidence,  therefore,  of  the  agree- 
ment, can  not  be  received  without  the  writing  or  secondary  evidence 
of  its  contents: 

1.  An  agreement  that  by  its  terms  is  not  to  be  performed  within  a 
year  from  the  making  of  it. 

2.  A  special  promise  to  answer  for  the  debt,  default,  or  miscar- 
riage of  another,  except  in  the  cases  provided  for. 

3.  An  agreement  made  upon  consideration  of  marriage  other  than 
a  mutual  promise  to  marry; 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  things  in  ac- 
tion, at  a  price  not  less  than  two  hundred  dollars,  unless  the  buyer 
accepts  or  receives  part  of  such  goods  and  chattels  or  the  evidences, 
or  some  of  them,  of  such  things  in  action,  or  pays  at  the  time  soma 


334  STORAGE 


part  of  the  purchase  money;  but  when  a  sale  is  made  at  auction,  an 
entry  by  the  auctioneer  in  his  sale-book,  at  the  time  of  the  sale,  of 
the  kind  of  property  sold,  the  terms  of  the  sale,  the  price,  and  the 
names  of  the  purchaser  and  person  on  whose  account  the  sale  is  made, 
is  a  sufficient  memorandum; 

5.  An  agreement  for  the  leasing  for  a  longer  period  than  one 
year,  or  for  the  sale  of  real  property,  or  of  an  interest  in  it;  and 
such  agreement,  if  made  by  an  agent  of  the  party  sought  to  be 
charged,  is  invalid,  unless  the  authority  of  the  agent  is  in  writing, 
subscribed  by  the  party  sought  to  be  charged; 

6.  An  agreement  authorizing  or  employing  an  agent  or  broker  to 
purchase  or  sell  real  estate  for  compensation  or  a  commission; 

7.  An  agreement  which  by  its  terms  is  not  to  be  performed  dur- 
ing the  lifetime  of  the  promisor,  or  an  agreement  to  devise  or  be- 
queath any  property,  or  to  make  any  provision  for  any  person  by 
will. 

Section  one  does  not  apply  to  contracts,  express  or  implied,  for  the 
rendition  of  services  for  an  indefinite  time,  with  payment  to  be  made 
when  the  relation  of  employer  and  employee  terminated.  (See 
Limitations.) 

Section  7  does  not  apply  when  a  person  sues  to  recover  for  ser- 
vices performed  for  the  deceased  during  his  lifetime. 

Stock,  Pasturing  Stock:     See  Liens;  Estrays. 

Stockholder:     See  Corporations. 

Stockholder's  Liability:     See  Corporation;;;  Foreign  Corporations. 

Storage:  See  Deposits;  Liens;  Findings;  Warehouseman.  A  de- 
posit not  gratuitous  is  called  storage.  The  depositary  in  such  case 
is  called  a  depositary  for  hire.  He  must  use  at  least  ordinary  care 
for  the  preservation  of  the  thing  deposited.  In  tho  absence  of  a 
different  agreement  or  usage,  he  is  entitled  to  one  week's  hire  for 
the  sustenance  and  shelter  of  living  animals  during  any  fraction  of 
a  week,  and  a  half  month's  hire  for  the  storage  of  any  other  property 
during  any  fraction  of  a  half  month.  In  the  absence  of  an  agree- 
ment as  to  the  length  of  time  during  which  a  deposit  is  to  continue, 
it  may  be  terminated  by  the  depositor  at  any  time,  and  by  the  de- 
positary upon  a  reasonable  notice.  In  spite  of  an  agreement  respect- 
ing the  length  of  time  which  a  deposit  is  to  continue,  it  may  be  ter- 
minated by  the  depositor  at  any  time  when  he  pays  all  that  would 
become  due  to  the  depositary  in  case  of  the  deposit  continuing  for 


SUBPOENA  335 


such  agreed  time.     A  depositary  for  hire  has  a  lien   for  storage 
charges. 

If  in  any  cause  other  than  want  of  ordinary  care  and  dili- 
gence on  his  part,  a  depositary  for  hire  is  unable  to  deliver  perishable 
property,  baggage  or  luggage  received  by  him  for  storage,  or  to 
collect  his  charges  for  storage  due  on  it,  he  may  cause  such  property 
to  be  sold,  in  open  market,  to  satisfy  his  lien  for  storage,  provided, 
that  no  property  except  perishable  property  shall  be  sold,  under  the 
provisions  of  this  section,  upon  which  storage  charges  shall  not  be 
4ue  and  unsaid  for  one  year  at  the  time  of  such  sale. 

Stoppage  in  Transit:  See  Sales;  Personal  Property;  Title;  Car- 
riers; Bill  of  Lading,  2130f ;  Warehouse  Receipts,  49. 

A  seller  or  consignor  of  property,  whose  claim  for  its  price  or 
proceeds  has  not  been  extinguished,  may  (upon  the  insolvency  of 
the  buyer  or  consignee  becoming  known  to  him  after  parting  with 
the  property) ,  stop  it  while  on  its  transit  to  the  buyer  or  consignee, 
and  resume  possession  of  it.  A  person  is  insolvent,  within  the  mean- 
ing of  the  last  paragraph,  when  he  ceases  to  pay  his  debts  in  the 
manner  usual  with  persons  of  his  business,  or  when  he  declares  his 
inability  or  unwillingness  to  do  so.  The  transit  of  property  is  at  an 
end  when  it  comes  into  the  possession  of  the  consignee,  or  into  that 
of  his  agents  (unless  such  agent  is  employed  merely  to  forward  the 
property  to  the  consignee).  Stoppage  in  transit  can  be  effected  only 
by  notice  of  the  carrier  or  depositary  of  the  property,  or  by  taking 
actual  possession  of  it.  Stoppage  in  transit  does  not,  of  itself,  rescind 
a  sale,  but  is  a  means  of  enforcing  the  lien  of  the  seller.  See  Liens. 
"The  effect  of  stoppage  in  transit  is  simply  to  restore  the  goods  to 
the  possession  of  the  seller,  so  as  to  enable  him  to  exercise  his 
rights  as  an  unpaid  seller.  To  enforce  his  right,  he  is  entitled  to 
retake  the  possession  of  the  property,  and  must  hold  it  until  the 
expiration  of  the  term  of  the  credit,  so  as  to  be  able  to  deliver  it 
upon  the  payment  of  the  price — since  up  to  that  time  the  buyer  has 
the  right  to  pay  the  price  and  take  the  property." 

Streets:     See  Real  Estate,  ^9;  Highway  Law. 

Subpoena:  At  least  a  week  before  the  time  of  the  trial,  all  neces- 
sary witnesses  should  be  subpoenaed.  A  subpoena  is  a  process  issued 
from  the  court,  by  which  the  attendance  of  a  witness  is  required. 
It  is  a  writ  or  order,  directed  to  a  person,  requiring  him  to  attend 
at  a  particular  time  and  place  to  testify,  and,  perhaps  also,  requir- 


336  SUCCESSION 


ing  him  to  bring  >\ith  him  any  books,  documentK  or  other  property 
under  his  control  which  may  be  material  to  the  case.  The  service 
of  a  subpoena  is  made  by  any  person  over  the  age  of  eighteen  years, 
by  showing  the  original  and  delivering  a  copy  of  it  to  the  party  per- 
sonally, and,  if  demanded  by  him  at  the  same  time,  giving  to  him 
the  fees  to  which  he  is  entitled,  namely  two  dollars  for  each  day, 
and  ten  cents  per  mile,  one  way  from  the  place  of  service  to  the 
place  of  trial.  He  must  also  be  allowed  a  reasonable  time  for  prepa- 
ration and  travel  to  the  place  of  attendance.  If  a  party  disobeys  the 
subpoena,  he  may  be  punished  for  contempt  of  court,  but  he  cannot 
be  compelled  to  come  a  greater  distance  than  50  miles  from  his  place 
of  residence — except  in  criminal  cases.  He  may  also  be  compelled 
to  pay  to  the  party  whose  subpoena  he  did  not  obey,  the  sum  of  one 
hundred  dollars  as  penalty,  and  any  further  damages  which  may 
be  sustained  for  his  failure  to  attend.  See  Arrest.  He  must  demand 
his  fee  when  the  subpoena  is  served  upon  him,  otherwise  he  cannot 
compel  payment.  He  must  obey  the  summons,  and  if  he  is  in  court 
he  can  be  compelled  to  testify,  even  though  his  fee  has  not  been  paid. 
If  he  demands  his  fee,  and  it  is  not  paid  at  once,  he  need  not  obey 
the  subpoena,  and  need  not  come  to  court  until  the  fee  is  paid  him. 

Subrogation:     See  Negotiable  Instruments,  ^3256. 

Subscription:     See  Signature. 

Succession:  (See  Escheat;  Community  Property;  Wills;  Husband 
and  Wife.)  Is  the  coming  in  of  another  to  take  the  property  of 
one  who  dies  without  disposing  of  it  by  will. 

The  property,  both  real  and  personal,  of  one  who  dies  without 
disposing  of  it  by  will,  passes  to  the  heirs  of  the  intestate,  subject 
to  the  control  of  the  probate  court,  and  to  the  possession  of  any 
administrator  appointed  by  that  court,  for  the  purposes  of  admin- 
istration, and  in  the  following  manner. 

1,  If  the  decedent  leaves  a  surviving  husband  or  wife,  and  only 
one  child,  or  the  lawful  issue  of  one  child,  in  equal  shares  to  the 
surviving  husband,  or  wife  and  child,  or  issue  of  such  child.  If  the 
decendent  leaves  a  surviving  husband  or  wife,  and  more  than  one 
child  living,  or  one  child  living  and  the  lawful  issue  of  one  or  more 
deceased  children,  one-third  to  the  surviving  husband  or  wife,  and 
the  remainder  in  equal  shares  to  his  children  and  the  lawful  issue 
of  any  deceased  child,  by  right  of  representation;  but  if  there  is 
no  child  of  decedent  living  at  his  death,  the  remainder  goes  to  all 


SUCCESSION  337 


of  his  lineal  descendants;  and  if  the  descendants  are  in  the  same 
degree  of  kindred  to  the  decedent,  they  share  equally,  otherwise 
they  take  according  to  the  right  of  representation.  If  the  decedent 
leaves  no  surviving  husband  or  wife,  but  leaves  issue,  the  whole 
estate  goes  to  such  issue;  and  if  such  issue  consists  of  more  than 
one  child  living,  or  one  child  living  and  the  lawful  issue  of  one  or 
more  deceased  children,  then  the  estate  goes  in  equal  shares  to  the 
children  living,  or  to  the  child  living  and  the  issue  of  the  deceased 
child  or  children  by  right  of  representation; 

2.  If  the  decedent  leaves  no  issue,  the  estate  goes  one-half  to 
the  surviving  husband  or  wife,  and  the  other  half  to  the  decedent's 
father  and  mother  in  equal  shares,  and  if  either  is  dead  the  whole 
of  said  half  goes  to  the  other.  If  there  is  no  father  or  mother, 
then  one-half  goes  in  equal  shares  to  the  brothers  and  sisters  of 
decedent  and  to  the  children  or  grandchildren  of  any  deceased 
brother  or  sister  by  right  of  representation.  If  the  decedent  leaves 
no  issue,  nor  husband  nor  wife,  the  estate  must  go  to  his  father  and 
mother  in  equal  shares,  or  if  either  is  dead  then  to  the  other; 

3.  If  there  is  neither  issue,  husband,  wife,  father,  nor  mother 
then  in  equal  shares  to  the  brothers  and  sisters  of  decedent  and  to 
the  children  or  grandchildren  of  any  deceased  brother  or  sister,  by 
right  of  representation; 

4.  If  the  decedent  leaves  a  surviving  husband  or  wife,  and 
neither  issue,  father,  mother,  brother,  sister,  nor  the  children  or 
grandchildren  of  a  deceased  brother  or  sister,  the  whole  estate  goes 
to  the  surviving  husband  or  wife; 

5.  If  the  decedent  leaves  neither  issue,  husband,  wife,  father, 
mother,  brother,  nor  sister,  the  estate  must  go  to  the  next  of  kin, 
in  equal  degree,  excepting  that,  when  there  are  two  or  more  col- 
lateral kindred,  in  equal  degree,  but  claiming  through  different  an- 
cestors, those  who  claim  through  the  nearest  ancestor  must  be 
preferred  to  those  claiming  through  an  ancestor  more  remote; 

6.  If  the  decedent  leaves  several  children,  or  one  child  and  the 
issue  of  one  or  more  children,  and  any  such  surviving  child  dies 
under  age  and  not  having  been  married,  all  the  estate  that  came  to 
the  deceased  child  by  inheritance  from  such  decedent  descends  in 
equal  shares  to  the  other  children  of  the  same  parent  and  to  the 
issue  of  any  such  other  children  who  are  dead,  by  right  of  repre- 
sentation ; 


338  SUCCESSION 


7.  If,  at  the  death  of  such  child,  who  dies  under  age,  not  having 
been  married,  all  the  other  children  of  his  parents  are  also  dead, 
and  any  of  them  has  left  issue,  the  estate  that  came  to  such  child 
by  inheritance  from  his  parent  descends  to  the  issue  of  all  other 
children  of  th-e  same  parent;  and  if  all  the  issue  are  in  the  same 
degree  of  kindred  to  the  child,  they  share  the  estate  equally,  other- 
wise they  take  according  to  the  right  of  representation; 

8.  If  the  deceased  is  a  widow,  or  widower,  and  leaves  no  issue, 
and  the  estate,  or  any  portion  of  it,  was  common  property  of  such 
decedent  and  his  or  her  deceased  spouse,  while  such  spouse  was 
living,  such  property  goes  in  equal  shares  to  the  children  of  such 
deceased  spouse  and  to  the  descendants  of  such  children  by  right 
of  representation,  and  if  none,  then  one-half  of  such  common  prop- 
erty goes  to  the  father  and  mother  of  such  decedent  in  equal 
shares,  or  to  the  survivor  of  them  if  either  be  dead,  or  if  both  be 
dead,  then  in  equal  shares  to  the  brothers  and  sisters  of  such  de- 
cedent and  to  the  descendants  of  any  deceased  brother  or  sister  by 
right  of  representation,  and  the  other  half  goes  to  the  father  and 
mother  of  such  deceased  spouse  in  equal  shares,  or  to  the  survivor 
of  them  if  either  be  dead,  or  if  both  be  dead,  then  in  equal  shares 
to  the  brothers  and  sisters  of  such  deceased  spouse  and  to  the 
descendants  of  any  deceased  brother  or  sister  by  right  of  repre- 
sentation. If  the  estate,  or  any  portion  thereof,  was  separate 
property  of  such  deceased  spouse,  while  living,  and  came  to  such 
decedent  from  such  spouse  by  descent,  devise,  or  bequest,  such 
property  goes  in  equal  shares  to  the  children  of  such  spouse  and  to 
the  descendants  of  any  deceased  child  by  right  of  representation, 
and  if  none,  then  to  the  father  and  mother  of  such  spouse,  in  equal 
shares,  or  to  the  survivor  of  them  if  either  be  dead,  or  if  both  be 
dead,  then  in  equal  shares  to  the  brothers  and  sisters  of  such  spouse 
and  to  the  descendants  of  any  deceased  brother  or  sister  by  right 
of  representation. 

9.  If  the  decedent  leaves  no  husband,  wife  or  kindred,  and  there 
are  no  heirs  to  take  his  estate  or  any  portion  of  it,  tinder  subdi- 
vision eight  of  this  section,  the  same  escheats  to  the  state  for  the 
support  of  the  common  schools. 

ADVANCEMENTS:  If  the  amount  of  such  advancement  exceeds 
the  share  of  the  heir  receiving  the  same,  he  must  be  excluded  from 
any  further  portion  in  the  division  and  distribution   of  the   estate, 


SUCCESSION  339 


but  he  must  not  be  required  to  refund  any  part  of  such  advance- 
ment; and  if  the  amount  so  received  is  less  than  his  share,  he  is 
entitled  to  so  much  more  as  will  give  him  his  full  share  of  the 
estate  of  the  decedent. 

All  gifts  and  grants  are  made  as  advancements,  if  expressed  in 
the  gift  or  grant  to  be  so  made;  or  if  charged  in  writing  by  the 
decedent  as  an  advancement,  or  acknowledged  in  writing  as  such, 
by  the  child  or  other  successor  or  heir. 

If  the  value  of  the  estate  so  advanced  is  expressed  in  the  con- 
veyance, or  in  the  charge  of  it  made  by  the  decedent,  or  in  the 
acknowledgment  of  the  party  receiving  it,  it  must  be  held  as  of  that 
value  in  the  division  and  distribution  of  the  estate;  otherwise,  it 
must  be  estimated  according  to  its  value  when  given,  as  nearly  as 
the  same  can  be  ascertained. 

If  any  child,  or  other  heir  receiving  advancement,  dies  before 
the  decedent,  leaving  heirs,  the  advancement  must  be  taken  into 
consideration  in  the  division  and  distribution  of  the  estate,  and  the 
amount  thereof  must  be  allowed  accordingly  by  the  representatives 
of  the  heirs  to  the  advancement,  in  like  manner  as  if  the  advancement 
had  been  made  directly  to  them. 

The  provisions  of  the  preceding  sections  of  this  article,  as  to  the 
inheritance  of  the  husband  and  wife  from  each  other,  apply  only 
to   the  separate  property  of  the   decedents. 

Upon  the  death  of  the  wife  ,the  entire  community  property,  with- 
out administration,  belongs  to  the  surviving  husband,  except  such 
portion  thereof  as  may  have  been  set  apart  to  her  by  judicial  de- 
cree, for  her  support  and  maintenance,  which  portion  is  subject  to 
her  testamentary  disposition,  and  in  the  absence  of  such  disposition, 
goes  to  her  descendants,  or  heirs,  exclusive  of  her  husband.  (Pres- 
ent Law.) 

Upon  the  death  of  the  wife,  one-half  of  the  community  property 
belongs  to  the  surviving  husband,  and  the  other  half  is  subject  to 
the  testamentary  disposition  of  the  wife,  subject,  however,  to  the 
provisions  under  Wills;  and  in  the  absence  of  such  testamentary 
disposition,  the  entire  community  property  goes  to  the  surviving 
husband  without  administration,  except  such  portion  thereof  as  may 
have  been  set  apart  to  the  wife  by  judicial  decree  for  her  support 
and  maintenance,  which  portion  is  subject  to  her  testamentary  dis- 
position, and  in  the  absence  of  such  disposition  goes  to  her  descen- 


340  SUCCESSION 


dants  or  heirs,  exclusive  of  her  husband,  and  the  fact  of  intestacy 
may  be  determined.  When  the  wife  makes  testamentary  disposition 
of  her  interest  in  the  community  property,  the  entire  community 
property  is  subject  to  the  community  debts,  and  the  charges 
and  expenses  of  administration.  Before  admission  of  any  such 
will  to  probate,  the  husband  shall  continue  in  the  manage- 
ment and  control  of  the  community  property;  after  the  admission 
of  the  will  to  probate,  the  court  may  and  so  far  as  the  proper  and 
advantageous  administration  of  the  estate  will  permit,  must  con- 
tinue the  management  and  control  of  the  community  property  in 
the  husband,  who  from  time  to  time  shall  account  to  the  estate  for 
such  management  and  control.      (Amended,  Stats.  1919.) 

[Note — The  above  section  waa  delayed  from  goinK  into  effect  by  referendum 
provisions  of  section  1,  Article  IV,  of  the  state  constitution,  and  will  be  voted 
upon  by  the  people  at  the  next  general  election  in  November,  1920,  or  at  any 
special  election  which  may  be  called  by  the  Governor,  in  his  discretion,  prior  to 
such    regular    election.] 

Upon  the  death  of  the  husband,  one-half  of  the  community  prop- 
erty goes  to  the  surviving  wife,  and  the  other  half  is  subject  to  the 
testamentary  dispo.sition  of  the  husband,  and  in  the  absence  of  such 
disposition,  goes  to  his  descendants,  equally,  if  such  descendants  are 
in  the  same  degree  of  kindred  to  the  decedent;  otherwise,  accord- 
ing to  the  right  of  representation;  and  in  the  absence  of  both  such 
disposition  and  such  descendants,  is  subject  to  distribution  in  the 
same  manner  as  the  separate  property  of  the  husband.  In  case  of 
the  dissolution  of  the  community  property  by  the  death  of  the  hus- 
band, the  entire  community  property  is  equally  subject  to  his  debts, 
the  family  allowance,  and  the  charges  and  expenses  of  administra- 
tion.     (Present  Law.) 

Upon  the  death  of  the  husband,  one-half  of  the  community  prop- 
erty belongs  to  the  surviving  wife,  and  other  half  is  subject  to  the 
testamentary  disposition  of  the  husband,  subject,  however,  to  the 
provisions  under  Wills;  and  in  the  absence  of  such  testamentary 
disposition,  it  all  goes  to  the  surviving  wife  upon  administration. 
In  case  of  the  dissolution  of  the  community  by  the  death  of  the 
husband,  the  entire  community  property  is  equally  subject  to  his 
debts,  the  family  allowance  and  the  charges  and  expenses  of  ad- 
ministration.     (Amended,  Stats.  1919.) 

[Note — The  above  section  was  delayed  from  going  into  effect  by  referendum 
provisions  of  section  1,  Article  IV,  of  the  state  constitution,  and  will  be  voted 
apon  by  the  people  at  the  next  general  election  in  November,  1920,  or  at  any 
special  election  which  may  be  called  by  the  Governor,  in  his  discretion,  prior  to 
such    regular    election.] 


SYNDICALISM  341 


The  one-half  of  the  community  property  which  belongrs  to  the 
surviving  wife  shall  not  be  subject  to  inheritance  tax  or  be  reck- 
oned as  part  of  the  estate  of  the  deceased  spouse  for  the  purpose 
of  fixing  the  compensation  of  executors  or  administrators  or  fixing 
attorneys  fees.     (Enacted,  Stats.  1919.) 

[Note — The  above  section  was  delayed  from  going;  into  effect  by  refercndiun 
provisions  of  section  1.  Article  IV,  of  the  state  constitution,  and  will  be  voted 
upon  by  the  people  at  the  next  sreneral  election  in  November,  1920,  or  at  any 
special  election  which  may  be  called  by  the  Governor,  in  his  discretion,  prior  to 
8neh  regular  election.] 

Suit:     See  Actions. 

Summons:     See  Action. 

Sunday:  See  Hours  of  Labor;  Negotiable  Instruments,  3166,  3266c. 

Supra  Protest:  See  Negotiable  Instruments,  113242,  3243,  3252, 
3253,  3257. 

Survivorship:      See  Deeds. 

Supplementary  Proceedings:      See  Execution. 

Sureties:     See  Guaranty;  Bond;  Attachment. 

Surveyors  must  receive  a  license,  and  each  must  show  that  he 
is  a  person  of  good  moral  character  and  that  he  is  a  fit  and  compe- 
tent person  to  receive  such  license — in  the  opinion  of  three  licensed 
surveyors,  each  of  whom  sign  this  certificate.  He  must  also  make 
oath  that  he  will  support  the  constitution  of  this  state  and  of  the 
United  States,  and  faithfully  discharge  the  duties  of  such  office. 

Survivorship  Deed:      See  Real  Estate. 

Syndicalism:  Approved  May  5,  1919.  Section  1.  The  term 
"criminal  syndicalism,"  as  used  in  this  act  is  hereby  defined  as  any 
doctrine  or  precept  advocating,  teaching  or  aiding  and  abetting 
the  commission  of  crime,  sabotage  (which  word  is  hereby  defined  as 
meaning  wilful  and  malicious  physical  damage  or  injury  to  physical 
property) ,  or  unlawful  acts  of  force  and  violence  or  unlawful  meth- 
ods of  terrorism  as  a  means  of  accomplishing  a  change  in  indus- 
trial ownership  or  control,  or  effecting  any  political  change.  Sec.  2. 
Any  person  who:  1.  By  spoken  or  written  words  or  personal  con- 
duct advocates,  teaches  or  aids  and  abets  criminal  syndicalism  or 
the  duty,  necessity  or  propriety  of  committing  crime,  sabotage,  vio- 
lence or  any  unlawful  method  of  terrorism  as  a  means  of  accom- 
plishing a  change  in  industrial  ownership  or  control,  or  effecting  any 
political  change;  or  2.  Wilfully  and  deliberately  by  spoken  or  writ- 
ten words  justifies  or  attempts  to  justify  criminal  syndicalism  or  the 
mission  or  attempt  to  commit  crime,  sabotage,  violence  or  unlawful 


342  TELEGRAPH 


methods  of  terrorism  with  intent  to  approve,  advocate  or  further 
the  doctrine  of  criminal  syndicalism;  or  3.  Prints,  publishes,  edits, 
issues  or  circulates  or  publicly  displays  any  book,  paper,  pamphlet, 
document,  poster,  or  written  or  printed  matter  in  any  other  form, 
containing  or  carrying  written  or  printed  advocacy,  teaching,  or  aid 
and  abetment  of,  or  advising,  criminal  syndicalism;  or  4.  Organ- 
izes or  assists  in  organizing,  or  is  or  knowingly  becomes  a  member 
of,  any  organization,  society,  group  or  assemblage  of  persons  or- 
ganized or  assembled  to  advocate,  teach  or  aid  and  abet  criminal 
syndicalism;  or  5.  Wilfully  by  personal  act  or  conduct,  practices  or 
commits  any  act  advised,  advocated,  taught  or  aided  and  abetted  by 
the  doctrine  or  precept  of  criminal  syndicalism,  with  intent  to  accom- 
plish a  change  in  industrial  ownership  or  control,  or  effecting  any 
political  change.  This  statute  was  declared  to  be  constitutional  in 
the  case  of  McDermott,  decided  by  the  entire  bench  of  our  Supreme 
Court  on  July  31,  1919. 

Tax:     See  Impost;  Toll.  In  the  general  sense  of  the  word,  includes 
every  charge  upon  persons  or  property,  imposed  by  or  under  the 
authority  of  the  legislature,  for  public  purposes. 
Tax  Deed:     See  Deeds. 

Tax  Title:  See  Real  Estate;  Title.  Property  on  which  the  city 
or  county  taxes  have  not  been  paid  are  sold  each  year,  and  (if  not 
bid  in  by  the  owner  or  some  other  party),  are  sold  to  the  state. 
When  the  state  holds  title  to  such  property  for  five  years,  it  again 
advertises  and  sells.  The  person  who  then  buys  secures  title  di- 
rectly from  the  state,  good  against  all  the  world  if  there  has  been 
no  error  in  any  of  the  proceedings  under  which  these  tax  sales  were 
made.  In  order  to  satisfy  himself,  the  purchaser  should  bring  an 
action  to  quiet  title,  making  the  former  owner  a  party  to  it.  If 
the  sale  is  found  to  be  void  for  any  reason,  the  original  owner  v/ill 
have  the  property  restored  to  him  upon  paying  to  the  purchaser  the 
full  amount  of  the  taxes,  penalties  and  costs  expended  by  him  to 
secure  and  preserve  the  property  up  to  that  time.  And  the  par- 
chaser,  in  his  turn,  may  have  the  amounts  refunded  by  the  county 
in  excess  of  what  he  may  have  paid  out  for  these  items. 

Telegraph:  See  Carriers.  A  carrier  of  messages  for  rev/ard  must 
use  great  cai*e  and  diligence  in  the  transmission  and  delivery  of 
messages,  A  carrier  of  messages  for  reward,  other  than  by  tele- 
graph or  telephone,  must  deliver  them  at  the  place  to  which  they 


TENDER  343 


are  addressed,  or  to  the  person  for  whom  they  are  intended.  Such 
carrier,  by  telegraph  or  telephone,  must  deliver  them  at  such  place 
and  to  such  person,  provided  the  place  of  address,  or  the  person 
for  whom  they  are  intended,  is  w^ithin  a  distance  of  two  miles  from 
the  main  office  of  the  carrier  in  the  city  or  town  to  which  the  mes- 
sages are  transmitted,  and  the  carrier  is  not  required,  in  making  the 
delivery,  to  pay  on  his  route  toll  or  ferriage;  but  for  any  distance 
beyond  one  mile  from  such  office,  compensation  may  be  charged 
for  a  messenger  employed  by  the  carrier.  A  carrier  of  messages  by 
telegraph  must,  if  it  is  practicable,  transmit  every  such  message  im- 
mediately upon  its  receipt.  But  if  this  is  not  practicable,  and 
several  messages  accumulate  upon  his  hands,  he  must  transmit  them 
in  the  following  order;  1.  Messages  from  public  agents  of  the 
United  States  or  of  this  state,  on  public  business;  2.  Messages  in- 
tended in  good  faith  for  immediate  publication  in  newspapers,  and 
not  for  any  secret  use;  3.  Messages  giving  information  relating 
to  the  sickness  or  death  of  any  person;  4.  Other  messages  in  the 
order  in  which  they  were  received. 

A  common  carrier  of  messages,  otherwise  than  by  telegraph,  must 
transmit  messages  in  the  order  in  which  he  receives  them  (except 
messages  from  agents  of  the  United  States  or  of  this  state,  on  pub- 
lic business,  to  which  he  must  always  give  priority)  ;  but  he  must 
fix  upon  certain  times  for  the  simultaneous  transmission  of  messages 
previously  received. 

Every  person  whose  message  is  refused  or  postponed,  contrary  to 
these  provisions,  is  entitled  to  recover  from  the  carrier  his  actual 
damages,  and  fifty  dollars  in  addition  to  them. 

Telephone  Messages:     See  Telegraph. 

Tender:     See  Costs;  Action;  Negotiable  Instruments,  ^3151. 

If  an  offer  is  made  to  extinguish  an  obligation,  with  intent  to  so 
extinguish  it  (and  according  to  the  following  rules)  the  obligation  is 
extinguished. 

An  obligation  for  the  payment  of  money  is  extinguished  by  the 
offer  of  performance — if  the  amount  is  immediately  deposited  with 
some  bank  of  good  repute  in  this  State,  in  the  name  of  the  creditor, 
and  notice  of  this  given  to  him. 

This  offer  must  be  made  by  the  debtor,  or  some  person  in  his  be- 
half, with  his  assent.     If  of  partial  performance,  it  is  of  no  effect. 

It  must  be  made  to  the  creditor   (or  to  any  one  of  two  or  more 


344  TENDER 


joint  creditors),  or  to  a  person  authorized  by  one  or  more  of  them 
to  receive  or  collect  what  is  due  under  the  obligation — if  such 
creditor  is  present  at  the  place  where  the  offer  is  made;  and,  if  not, 
wherever  the  creditor  may  be  found. 

At  the  option  of  the  debtor,  and  unless  there  is  some  express 
agreement  to  the  contrary,  such  offer  may  be  made  (1)  at  any  place 
appointed  by  the  creditor;  (2)  wherever  the  person  to  whom  the 
offer  ought  to  be  made  can  be  found;  or,  (3)  if,  with  reasonable  dili- 
gence, such  person  cannot  be  found  within  this  state,  and  within  a 
reasonable  distance  from  his  place  of  business  or  residence  (or  if 
he  evades  the  debtor) ,  then  at  his  residence  or  place  of  business — 
if  it  can  be  found  within  this  state,  with  reasonable  diligence;  or, 
(4)  if  this  cannot  be  done,  then  at  any  place  within  this  state. 

If  the  obligation  fixes  a  time  in  which  it  is  to  be  performed — then 
the  offer  must  be  made  at  that  time,  and  within  reasonable  hours — 
and  not  before,  nor  afterwards. 

If  no  such  time  is  fixed,  then  the  offer  may  be  made  at  any  time 
before  the  debtor  has  refused  to  perform — upon  reasonable  demand. 

If  delay  in  delivery  can  be  paid  for  and  if  time  has  not  been  ex- 
pressly declared  to  be  of  the  essence  of  the  compensation  (see  In- 
stallment Sales),  an  offer  of  performance  may  be  made  at  any  time 
after  it  is  due — but  accompanied  with  an  offer  of  such  pay,  and  with- 
out prejudice  to  any  rights  acquired  in  the  meantime  by  creditor 
or  any  other  person. 

Such  offer  must  be  made  in  good  faith,  and  under  such  circum- 
stances as  is  most  likely  to  benefit  the  creditor.  It  must  be  free 
from  any  condition  which  the  creditor  is  not  bound  to  perform,  on 
his  part. 

It  is  of  no  effect  if  the  person  malting  it  is  not  able  and  willing  to 
perform  according  to  its  terms. 

Unless  the  offer  is  accepted,  the  thing  to  be  delivered  (if  that  is 
a  portion  of  the  offer)   need  not  be  so  delivered. 

When  such  thing  is  offered — by  way  of  performance — it  must  not 
be  mixed  with  other  things  from  which  it  cannot  be  separated  im- 
mediately and  without  difficulty. 

When  a  debtor  is  entitled  to  the  performance  of  a  condition  prece- 
dent to  (or  concurrent  with)  the  performance  on  his  part — he  may 
make  his  offer  dependent  upon  such  performance  of  this  condition. 

If  a  person  offers  a  thing  other  than  money  (by  way  of  perform- 
ance)  and  intends  to  treat  it  as  belonging  to  the  creditor,  he  must 


TENDER  345 


retain  it  as  a  depository  for  hire  until  the  creditor  accepts  it — or 
until  he  has  given  reasonable  notice  to  the  creditor  that  he  will  not 
retain  it  any  longer,  and  until  he  has  deposited  it  with  another  per- 
son, if  with  reasonable  diligence  a  suitable  depository  can  be  found 
for  it  (see  Deposits  of  Personal  Property). 

If  anything  is  given  to  a  creditor  by  way  of  performance  and  he 
refuses  to  accept  it  as  such — he  is  not  bound  to  return  it  without 
demand;  but  if  he  keeps  it,  he  is  a  gratuitous  depository  of  it  (see 
Deposit  of  Personal  Property). 

Whoever  pays  money,  or  delivers  an  instrument  or  property,  is 
entitled  to  a  receipt  for  it  from  the  person  to  whom  the  payment  or 
delivery  is  made,  and  may  demand  a  proper  signature  to  such  re- 
ceipt before  he  delivers  the  property  or  pays  the  money. 

An  offer  in  writing  to  pay  a  particular  sum  of  money  (or  to  de- 
liver a  written  instrument  or  specific  personal  property)  is  equivalent 
to  the  actual  production  and  tender  of  the  money,  or  instrument  or 
property — if  it  is  not  accepted. 

All  objections  to  the  mode  of  performance,  which  the  creditor  has 
the  opportunity  to  state  to  the  debtor  at  the  time  of  making  the 
offer,  and  which  could  then  be  obviated  by  the  debtor  or  his  repre- 
sentative, are  then  waived  by  the  creditor — unless  then  stated  by 
him. 

If  the  person  to  whom  tender  is  made  has  any  objection  to  the 
money,  instrument  or  property,  he  must  specify  such  objection  at 
the  time.  If  he  does  not  do  so,  he  is  considered  to  have  waived  it. 
If  the  objection  is  to  the  amount  of  money,  or  the  terms  of  the  in- 
strument, or  the  amount  or  kind  of  property,  he  must  specify  what 
he  requires,  or  he  is  precluded  from  doing  so  afterward. 

Performance,  or  offer  of  performance,  in  whole  or  in  part,  may  be 
excused  by  the  following  causes,  in  proportion  as  each  may  affect  it: 
(1)  When  such  performance  or  offer  is  prevented  or  delayed  by  the 
creditor  (or  by  the  operation  of  law)  even  though  there  may  be  an 
agreement  that  this  shall  not  be  an  excuse;  (2)  when  prevented  or 
delayed  by  an  irresistible  or  superhuman  cause,  or  by  act  of  public 
enemies  of  this  State  or  the  United  States,  unless  the  parties  have 
expressly  agreed  to  the  contrary;  (3)  when  the  debtor  is  induced  to 
make  it,  by  any  act  of  the  creditor  intended  to  or  naturally  tending 
to  have  that  effect — done  at  the  time  at  which  such  performance  or 
offer  may  be  made,  and  not  rescinded  before  that  time. 


346  TORT 


If  the  creditor  prevents  performance  of  the  oblif»ation,  the  debtor 
is  entitled  to  all  the  benefits  which  he  would  have  obtained  if  it  had 
been  performed  by  both  partes. 

If  the  performance  of  an  obligation  is  prevented  by  any  cause  ex- 
cusing it  (except  the  act  of  the  creditor),  the  debtor  is  entitled  to 
a  ratable  proportion  of  the  consideration  to  which  he  would  have 
been  entitled  under  complete  performance,  and  according  to  the 
benefit  which  the  creditor  receives  from  the  actual  performance. 

If  the  creditor  refuses  to  accept  performance,  before  such  per- 
formance is  due,  this  is  equivalent  to  an  offer  and  refusal — unless  he 
gives  notice  to  the  debtor  of  his  willingness  to  accept  it,  before 
performance  is  actually  made. 

The  title  to  the  thing  duly  offered  in  performance  of  an  obliga- 
tion passes  to  the  creditor — if  such  intention  is  at  that  time  signi- 
fied by  the  debtor.   (See  Tender;  Interest.) 

Though  title  to  the  thing  offered  in  payment  or  performance  does 
not  pass  to  the  creditor,  such  offer,  duly  made,  stops  all  interest 
running  on  the  obligation,  and  has  the  same  effect  as  if  performed. 

Testify  means  every  mode  of  oral  statement,  under  oath  or  affir- 
mation. 

Third  Party  Claim:    See  Attachment. 

Threshing  Machine:      See  Fires;  Liens. 

Tide  Lands:     See  Real  Estate;  Waters;  Eminent  Domain. 

Timber:     See  Real  Estate;  Lumber;  Rafts;  Fire. 

Time:     See  Holidays;  Negotiable  Instruments,  ^3167. 

Title:  See  Real  Estate;  Negotiable  Instruments,  113136;  Bill  of 
Lading,  2128c,  d,  e,  f ;  Personal  Property;  Escheat;  Tax  Title;  Trans- 
fer; Findings;  Sale;  Exchange;  Stoppage  in  Transit;  Warehouse  Re- 
ceipts; Installments. 

The  original  and  ultimate  right  to  all  property,  real  and  per- 
sonal, within  the  limits  of  this  state,  is  in  the  people  of  the  state. 
ATkl  all  such  property,  which  does  not  belong  to  any  person,  belongs 
to  the  people.  Whenever  any  title  to  any  property  fails  for  want  of 
heirs,  or  next  of  kin,  it  reverts  to  the  people. 

Title  by  Prescription:     See  Adverse  Possession. 

Toll:  See  Tax;  Impost;  is  a  sum  of  money  for  the  use  of  some- 
thing, generally  applied  to  the  consideration  which  is  paid  for  the 
use  of  a  road,  bridge,  or  the  like,  of  a  public  nature. 

A  Tort  is  a  breach  of  duty,  fixed  by  law,  for  which  a  suit  for  dam- 


TRADEMARK  347 


ages  can  be  maintained.  It  is  a  private  wrong,  apart  from  contract. 
Example :  Assault,  breach  of  the  peace,  trespass,  false  arrest,  false 
imprisonment,  libel  and  slander,  injury  to  feelings,  caused  by  neg- 
ligence. Persons  in  a  state  of  society  owe  a  duty  to  each  other — to 
refrain  breaking  the  laws  and  from  injuring  all  other  persons.  While 
each  person  has  a  right  to  live  and  do  with  his  property  as  he  pleases, 
yet  he  must  do  it  M^ith  reasonable  regard  for  the  rights  of  others — - 
since  they  also  have  the  same  right.  If  there  is  no  damage  suffered, 
there  can  be  no  recompense. 

Trade  Acceptances:      See  Negotiable  Instruments,  1|3223. 

Trade  Name:     See  Fictitious  Name;  Name. 

Trademarks  and  Signs:  One  who  produces  or  deals  in  a  particular 
thing,  or  conducts  a  particular  business,  may  appropriate  to  his  ex- 
clusive use  as  a  trademark — any  form,  symbol,  or  name  which  has 
not  been  so  appropriated  by  another — to  designate  the  origin  or 
ownership  of  the  thing  or  business;  but  he  cannot  appropriate  ex- 
clusively any  designation,  or  part  of  a  designation  which  relates 
only  to  the  name,  quality  or  to  the  description  of  the  name  or  busi- 
ness, or  the  place  where  the  thing  is  produced,  or  the  business  car- 
ried on.  Any  person  or  persons,  desiring  to  secure  within  this  state 
the  exclusive  use  of  any  trade-mark  or  name  for  any  article  of 
manufacture  or  for  any  business,  shall,  within  thirty  days  after 
commencing  to  use  such  trademark  or  name,  or  at  any  time  there- 
after and  before  the  filing  of  the  said  trade-mark  or  name  by  any 
other  person,  firm  or  corporation,  file  with  the  secretary  of  state 
his  claim  to  the  same,  and  a  copy  or  description  of  such  trade- 
mark or  name,  with  his  affidavit  attached  to  it,  certified  to  by  any 
officer  authorized  to  take  acknowledgments  of  coaveyances,  setting 
forth  that  he  (or  the  firm  or  corporation  of  which  he  is  a  member) 
is  the  exclusive  owner,  or  agent  of  the  owner,  of  such  trademark  or 
name.  Any  person  may  adopt  a  name  for  any  farm  or  estate  owned 
or  leased  by  him,  and  register  it  in  the  manner  provided  for  the 
registration  of  trademarks.  Such  registration  shall  have  the  same 
effect  as  the  registration  of  a  trademark.  Any  person  selling  or 
marketing  the  products  grown  on  any  particular  farm  or  estate  may 
use  the  name  of  such  farm  or  estate  as  a  trademark  on  such  products, 
in  the  same  manner  as  provided  for  other  trademarks,  and  subject 
to  the  same  rights  and  duties  as  provided  in  this  article.  Any  per- 
son may  record  any  trademark  or  name  by  filing  with  the  secretary 


348  TRANSFERS 


of  state  his  claim  to  the  same,  and  a  copy  or  description  of  such 
trademark  or  name,  with  his  affidavit  attached  to  it,  certified  to  by 
any  officer  authorized  to  take  acknowledgments  of  conveyances, 
setting  forth  that  he  (or  the  firm  or  corporation  of  which  he  is  a 
member)  is  the  exclusive  owner,  or  aprent  of  the  o\^Tier  of  such  trade- 
mark or  name.  Any  person  who  has  first  adopted  and  used  a  trade- 
mark or  name  by  filing  it  in  the  office  of  the  secretary  of  state, 
whether  within  or  beyond  the  limits  of  this  state,  is  the  original 
owner.  Such  ownership  may  be  transferred  in  the  .same  manner  as 
personal  property,  and  is  entitled  to  the  same  protection  by  suits  at 
law;  and  any  court  of  competent  jurisdiction  maj'  restrain,  by  in- 
junction, any  use  of  trademarks  or  names  in  violation  of  these  pro- 
visions. 

Section  1.  Any  farm,  ranch,  or  villa  owner  in  this  state,  may  upon 
the  payment  of  one  dollar  to  the  secretary  of  state,  have  the  name 
of  his  farm,  ranch  or  villa  duly  registered  in  a  register  which  the 
secretary  of  state  shall  keep  for  said  pui-pose,  and  shall  be  fur- 
nished a  certificate,  issued  under  seal,  and  setting  forth  the  name 
and  location  of  the  farm,  ranch  or  villa,  the  name  of  the  owner; 
provided,  that  when  any  name  shall  have  been  recorded  as  the  name 
of  any  farm,  ranch  or  villa,  such  name  shall  not  be  recorded  as  the 
name  of  any  other  farm,  ranch  or  villa  in  this  state,  except  by  pre- 
fixing or  adding  of  designating  words  to  it.  The  secretary  of  state 
shall  register  such  name  only  for  the  person  entitled  thereto. 

Sec.  2.  Any  person  who  shall  register  as  his  own,  any  such  name 
already  in  use  in  this  state,  knowing  such  name  to  be  adopted  as  the 
name  of  a  farm,  ranch  or  villa  in  it,  or  shall  make  use  of  such  name 
when  regularly  registered  and  in  use  by  any  other  person  entitled  to 
it  under  the  provisions  of  this  act  shall  be  guilty  of  a  misdemeanor. 

Transfer:  See  Title;  Personal  Property;  Sales;  Warranty;  Real 
Estate;  Warehouse  Receipts;  Bill  of  Lading,  2128c,  d,  e,  f. 

TRANSFER  is  an  act  of  the  parties  or  of  the  law,  by  which  the 
title  to  property  is  conveyed  from  one  living  person  to  another.  A 
voluntary  transfer  is  an  executed  contract,  subject  to  all  the  rules 
of  law  concerning  contracts  in  general;  except  that  a  consideration 
is  not  necessary  to  its  validity.  Property  of  any  kind  may  be  trans- 
ferred— except  as  noted.  A  possibility,  not  coupled  with  an  inter- 
est, cannot  be  transferred,  but  a  right  of  re-entry  (or  of  reposses- 
sion for  breach  of  conditions  .subsequent)   can  be.     A  transfer  may 


TRESPASS  349 


be  made  without  writing,  unless  a  writing  is  specially  required  by 
law.  See  Statute  of  Frauds.  The  transfer  of  a  thing  vests  in  the 
transferee  all  the  title  to  the  thing  transferred  which  the  transferrer 
then  has,  unless  a  different  intention  is  expressed  or  is  necessarily 
implied.  It  also  transfers  all  its  incidents,  unless  expressly  excepted; 
but  the  transfer  of  the  incident  of  a  thing  does  not  transfer  the  thing 
itself.  That  is,  a  transfer  of  land  carries  the  easements  with  it, 
but  the  transfer  of  an  easement  will  not  also  carry  title  to  the  land, 
unless  expressly  designated  in  the  instrument.  An  interest  in  a 
ship,  or  in  an  existing  tnist,  must  be  in  writing,  when  transferred,  or 
else  by  operation  of  law.     See  Ships. 

A  debtor  may  pay  one  creditor  in  preference  to  another,  or  may 
give  to  one  creditor  security  for  the  payment  of  his  demand  in  pref- 
erence to  another.  Where  a  creditor  is  entitled  to  resort  to  each  of 
several  funds  for  the  satisfaction  of  his  claim,  and  another  person 
has  an  interest  in,  or  is  entitled  as  a  creditor  to  resort  to  some,  but 
not  all  of  them,  the  latter  may  require  the  former  to  seek  satisfac- 
tion from  those  funds  to  which  the  latter  has  no  such  claim,  so  far  as 
it  can  be  done  without  impairing  the  right  of  the  former  to  complete 
satisfaction,  and  without  doing  injustice  to  third  persons.  Every 
transfer  of  property  or  charge  made  on  it,  every  obligation  incurred, 
and  every  judicial  proceeding  taken,  with  intent  to  delay  or  defraud 
any  creditor  or  other  person  of  his  demands,  is  void  against  all  cred- 
itors of  the  debtor,  and  their  successors  in  interest  and  against  any 
person  upon  whom  the  estate  of  the  debtor  devolves  in  trust  for  the 
benefit  of  others  then  the  debtor.  A  creditor  can  avoid  the  act  or  ob- 
ligation of  his  debtor  for  fraud  only  where  the  fraud  obstructs  the 
enforcement,  by  legal  process,  of  his  right  to  take  the  property 
affected  by  the  transfer  or  obligation.  A  debtor,  within  the  meaning 
of  this  title,  is  one  who,  by  reason  of  an  existing  obligation,  is  or  may 
become  liable  to  pay  money  to  another,  whether  such  liability  is  cer- 
tain or  contingent.  A  creditor  is  one  in  whose  favor  an  obligation  ex- 
ists, by  reason  of  which  he  is  (or  may  become),  entitled  to  the  pay- 
ment of  money.  In  the  absence  of  fraud,  every  contract  of  a  debtor 
is  valid  against  all  his  creditors,  existing  or  subsequent,  who  may  not 
acquire  a  lien  on  the  property  affected  by  such  contract. 

Tree*:     See  Real  Estate;  Fruit;  Crops. 

Trespass:  See  Trees;  Fruit  Trees;  Animals;  Real  Estate;  Conver- 
sion; Aviation. 


350  TRUSTS 


TRESPASS  is  disturbance  of  possession.  It  is  either  (1)  the 
entry  on  another's  land,  or  (2)  the  taking  of  another's  goods.  (Com- 
pare Conversion.)  It  may  be  justified  either  (1)  by  license — or 
permission — of  the  party,  or  (2)  a  license  of  law,  which  is  inde- 
pendent of  the  will  of  the  individual.  This  may  be  (a)  the  entry 
under  legal  process  to  levy  an  attachment,  or  make  an  arrest,  (b) 
to  enter  and  save  the  life  of  man  or  beast  in  danger,  and — to  a 
limited  extent — to  save  other  property,  where  the  loss  could  not  be 
remedied  (c)  to  go  upon  another's  lands  to  get  one's  goods  which 
have  gotten  there  through  no  fault  of  his,  but  not  if  there  through 
his  own  fault.  See  Trees,  (d)  License  to  enter  an  inn  or  public 
conveyance  (e)  the  right  of  the  landlord  to  enter  at  reasonable  times 
to  see  that  waste  is  not  being  committed  (f)  license  of  a  tenant  at 
will  to  enter  within  a  reasonable  time  after  his  term  has  expired  and 
remove  his  property  (g)  license  to  abate  a  private  nuisance  after 
notice. 

Every  person  who  wilfully  commits  any  trespass  by  digging,  tak- 
ing or  carrying  away  from  any  lot  situated  within  the  limits  of  any 
incorporated  city — without  the  permit  of  the  owner,  or  agent  of 
his — any  dirt,  stone,  or  soil — and  every  person  who  injures  any 
kind  of  timber  upon  the  lands  of  another,  or  carries  it  away,  or 
severs  anything  attached  to  the  land  or  carries  away  dirt  or  stone,  or 
tears  down  any  fence,  or  sign,  or  notice,  or  enters  any  enclosure 
of  another  for  the  purpose  of  killing  game,  or  injures  standing  crops, 
fruits  or  vegetables,  or  alters  or  defaces  any  boundary  mark,  or 
injures  any  dam  or  levee — is  guilty  of  a  misdemeanor. 

Trial:     See  Action;  Witnesses. 

Trover:      See   Conversion. 

Trunks:     See  Liens;  Baggage;  Luggage;  Hotels. 

Trust  Deed:     See  Deeds;  Validating  Acts;  Acknowledgments. 

Trusts:  See  Monopoly;  Husband  and  Wife;  Corporation;  Agency; 
Real  Estate. 

The  trust  is  either:  (1)  Voluntary;  or,  (2)  Involuntary.  A  vol- 
untary trust  is  an  obligation  arising  out  of  a  personal  confidence  in 
and  voluntary  acceptance  by)  one  person  for  the  benefit  of  another. 
An  involuntary  trust  is  one  which  is  created  by  operation  of  law. 

The  person  whose  confidence  creates  a  trust  is  called  the  truster; 
the  person  in  whom  the  confidence  is  reposed  is  called  the  trustee; 
and  the  person  for  whose  benefit  the  trust  is  created  is  called  the 


TRUSTS  351 


beneficiary.  Every  one  who  voluntary  assumes  a  relation  of  personal 
confidence  with  another  is  deemed  a  trustee,  within  the  meaning  of 
this  article,  not  only  as  to  the  person  who  reposes  such  confidence, 
but  also  as  to  all  persons  of  whose  affairs  he  acquired  information 
which  was  given  to  such  person  in  the  like  confidence,  or  over  whose 
affairs  by  such  confidence  he  obtained  any  control. 

A  trust  may  be  created  for  any  purpose  for  which  a  contract  may 
be  lawfully  made,  except  as  otherwise  described  by  the  article  on 
uses  and  trusts  and  on  transfers.     See  Real  Estate. 

Subject  to  the  provisions  of  the  first  paragraph,  a  voluntary  trust  is 
created,  as  to  the  truster  and  beneficiary,  by  any  words  or  acts  of  the 
truster,  indicating  with  reasonable  certainty:  (1)  An  intention  on 
the  part  of  the  truster  to  create  a  trust;  and,  (2)  The  subject,  pur- 
pose, and  beneficiary  of  the  trust.  Subject  to  the  same,  a  voluntary 
trust  is  created,  as  to  the  trustee,  by  any  words  or  acts  of  his — in- 
dicating, with  reasonable  certainty:  (l)His  acceptance  of  the  trust, 
or  his  acknowledgment  made  upon  sufficient  consideration  of  its 
existence;  and,  (2)  The  subject,  purpose,  and  beneficiary  of  the 
trust. 

One  who  Avrongfully  detains  a  thing  is  an  involuntary  trustee  of  it, 
for  the  benefit  of  the  owner.  One  who  gains  a  thing  by  fraud,  acci- 
dent, mistake,  undue  influence,  the  violation  of  a  trust,  or  other 
wrongful  act,  is,  (unless  he  has  some  other  and  better  right  to  it), 
an  involuntary  trustee  of  the  thing  gained,  for  the  benefit  of  the 
person  who  would  otherwise  have  had  it.  In  all  matters  connected 
with  a  trust,  a  trustee  is  bound  to  act  in  the  highest  good  faith  to- 
ward his  beneficiary,  and  may  not  obtain  any  advantage  in  such 
matters  over  the  beneficiary  by  the  slightest  misrepresentation,  con- 
cealment, threat,  or  adverse  pressure  of  any  kind. 

A  trustee  may  not  use  or  deal  with  the  trust  property  for  his  own 
profit,  or  for  any  other  purpose  unconnected  with  the  trust,  in  any 
manner.  A  trustee  who  uses  or  disposes  of  the  trust  property,  con- 
trary to  the  foregoing,  may,  (at  the  option  of  the  beneficiary),  be 
required  to  account  for  all  profits  made,  or  to  pay  for  the  value  of  its 
use,  and,  if  he  has  disposed  of  it,  to  replace  it,  with  its  fruits,  or  to 
account  for  its  proceeds,  with  interest.  If  he  uses  or  disposes  of  the 
trust  property  in  any  manner  not  authorized  by  the  trust,  but  in 
good  faith,  and  with  intent  to  serve  the  interest  of  the  beneficiary, 
he  is  liable  only  to  make  good  whatever  is  lost  to  the  beneficiary 


352  TRUSTS 


by  liis  error.  He  is  responsible  for  the  wrongful  acts  of  a  cotrus- 
tee to  which  he  consented,  or  which,  by  his  negligence,  he  enabled 
the  latter  to  commit,  but  for  no  others. 

Neither  a  trustee  nor  any  of  his  agents  may  take  part  in  any  trans- 
action concerning  the  trust  in  which  he  or  any  one  for  whom  he 
act?  as  agent  has  an  interest,  present  or  contingent,  adverse  to 
that  of  his  bencflciary,  except  as  follows:  1.  When  the  beneficiary, 
having  capacity  to  contract  permits  him  to  do  so  (with  a  full  knowl- 
edge of  the  motives  of  the  trustee,  and  of  all  other  facts  concerning 
the  transaction  which  might  effect  his  own  decision,  and  without  the 
use  of  any  influence  on  the  part  of  the  trustee.  2.  When  the  bene- 
ficiary not  having  capacity  to  contract,  the  proper  court,  upon  the 
like  information  of  the  facts,  grants  the  like  permission;  or  3.  When 
some  of  the  beneficiaries  having  capacity  to  contract,  and  some  not 
having  it,  the  former  grant  permission  for  themselves,  and  the  proper 
court  grants  permission  for  those  not  having  capacity — in  the  man- 
ner just  described. 

A  trustee  may  not  use  the  influence  which  his  position  gives  him 
to  obtain  any  advantage  from  his  beneficiary;  nor  may  he,  so  long 
as  he  remains  in  the  trust,  undertake  another  trust  adverse  in  its 
nature  to  the  interest  of  his  beneficiary  in  the  subject  of  the  trust, 
without  the  consent  of  the  beneficiary.  If  a  trustee  acquires  any 
interest,  or  becomes  charged  with  any  duty,  adverse  to  the  interest 
of  his  beneficiary  in  the  subject  of  the  trust  he  must  immediately 
inform  the  latter  of  it,  and  may  be  at  once  removed.  Everj'  viola- 
tion of  the  provisions  of  this  section  is  a  fraud  against  the  beneficiary. 
All  transactions  between  a  ti-ustee  and  his  beneficiary  during  the 
existence  of  the  trust  (or  while  the  influence  acquired  by  the  trus- 
tee remains),  by  which  he  obtains  any  advantage  from  his  benefi- 
ciary, are  presumed  to  be  entered  into  by  the  latter  without  suffi- 
cient consideration,  and  under  undue  influence. 

A  trustee  who  wilfully  and  unnecessarily  mingles  the  trust  prop- 
erty with  his  own,  so  as  to  constitute  himself  in  appearance  its  abso- 
lute owner,  is  liable  for  its  safety  in  all  events,  and  for  the  value  of 
its  use.  Every  one  to  whom  property  is  transferred  in  violation  of 
a  trust,  holds  the  same  as  an  involuntary  trustee  under  such  trust, 
unless  he  purchased  it  in  good  faith,  and  for  a  valuable  consideration. 
One  who  actually  and  in  good  faith  transfers  any  money  or  other 
property  to  a  trustee,  as  such,  is  not  bound  to  see  to  the  application 


TRUSTS  353 


of  it  and  his  rights  can  in  no  way  be  prejudiced  by  a  misapplication 
of  it  by  the  trustee.  Other  persons  must,  at  their  peril,  see  to  the 
proper  application  of  money  or  other  property  paid  or  delivered  by 
them.  The  provisions  of  this  article  apply  only  to  express  trusts, 
created  for  the  benefit  of  another  than  the  truster,  and  in  which 
the  title  to  the  trust  property  is  vested  in  the  trustee;  not  including, 
how^ever,  those  of  executors,  administrators,  and  guardians,  as  such. 
The  mutual  consent  of  the  truster  and  trustee  creates  a  trust  of 
which  the  beneficiary  may  take  advantage  at  any  time  before  its 
rescission. 

When  a  trustee  is  appointed  by  a  court  or  public  officer,  as  such, 
such  court  or  ofl^cers  is  the  truster,  within  the  meaning  of  the  last 
paragraph.  The  nature,  extent,  and  object  of  a  trust  is  expressed 
in  the  declaration  of  trust.  All  declarations  of  a  trustor  to  his  trus- 
tees, in  relation  to  the  tru.st,  (before  its  acceptance  by  the  trustees, 
or  any  of  them),  are  to  be  deemed  part  of  the  declaration  of  the 
tru.st,  except  that  when  a  declaration  of  tru.st  is  made  in  -writing,  all 
previous  declarations  by  the  same  truster  are  merged  in  such  writ- 
ing. A  trustee  must  fulfill  the  purpose  of  the  trust,  as  declared  at 
its  creation,  and  must  follow  all  the  directions  of  the  trustor  given 
at  that  time  (except  as  modified  by  the  consent  of  all  parties  inter- 
ested), in  the  same  manner,  and  to  the  same  extent,  as  an  employee. 
He  must  invest  money  received  by  him  under  the  trust,  as  fast  as 
he  collects  a  sufficient  amount,  in  such  manner  as  to  afford  reason- 
able security  and  interest  for  such  money;  and  (vrhether  he  receives 
any  compensation  or  not) ,  must  use  at  least  ordinary  care  and  dili- 
gence in  the  execution  of  his  trust.  If  the  trustee  omits  to  invest 
the  trust  moneys  according  to  this  paragraph,  he  must  pay  simple 
interest  on  it  (if  such  omission  is  negligent  merely),  and  compound 
interest — if  it  is  wilful. 

A  trustee  cannot  enforce  any  claim  against  the  trust  property 
which  he  purchases  after  or  in  contemplation  of  his  appointment  as 
trustee ;  but  he  may  be  allowed,  by  any  competent  court,  to  charge 
to  the  trust  property  what  he  has  in  good  faith  paid  for  the  claim, 
upon  discharging  such  claim.  A  trustee  is  entitled  to  the  repayment, 
out  of  the  trust  property,  of  all  expenses  actually  and  properly  in- 
curred by  him  in  the  performance  of  this  trust.  He  is  entitled  to 
the  repajinent  of  even  unlawful  expenditures,  if  they  were  pro- 
ductive of  actual  benefit  to  the  estate.     A  trustee  is  a  general  agent 


3r.4  TRUSTS 


for  the  trust  property.  His  authority  is  such  as  is  conferred  upon 
him  by  the  declaration  of  the  trust  and  by  this  article  and  none  other. 
His  acts,  within  the  scope  of  his  authority,  bind  the  trust  property 
to  the  same  extent  as  the  acts  of  an  apjent  bind  his  principal.  Where 
there  are  several  cotrustees,  all  must  unite  in  any  act  to  bind  the 
trust  property,  unless  the  declaration  of  trust  provides  otherwise. 
A  discretionary  power  conferred  upon  a  trustee  is  presumed  not  to 
be  left  to  his  arbitrary  discretion,  but  may  be  controlled  by  the 
proper  court  if  not  reasonably  exercised,  unless  an  absolute  discre- 
tion is  clearly  conferred  by  the  declaration  of  trust.  An  involun- 
tary trustee,  who  becomes  such  through  his  own  fault,  has  none  of 
the  rights  mentioned  in  this  article. 

A  trust  is  extinguished  by  the  entire  fulfillment  of  its  object,  or  by 
such  object  becoming  impossible  or  unlawful.  A  trust  cannot  be 
revoked  by  the  truster  after  its  acceptance  (actual  or  presumed), 
by  the  trustee  and  beneficiaries,  except  by  the  consent  of  all  the  bene- 
ficiaries, unless  the  declaration  of  trust  reserves  a  power  of  revoca- 
tion of  the  truster,  and  in  that  case  the  power  must  be  strictly  pur- 
sued. The  office  of  a  trustee  is  vacated:  1.  By  his  death;  or,  2.  By 
his  discharge.  A  trustee  can  be  discharged  from  his  trust  only  as 
follows:  1.  By  the  extinction  of  the  trust;  2.  By  the  completion  of 
his  duties  under  the  trust;  3.  By  such  means  as  may  be  prescribed 
by  the  declaration  of  trust;  4.  By  the  consent  of  the  beneficiary,  if 
he  have  capacity  to  contract;  5.  By  the  judgment  of  a  competent 
tribunal,  in  a  direct  proceeding  for  that  purpose,  that  he  is  of  un- 
sound mind;  or,  6.  By  the  Superior  Court.  On  the  death,  renuncia- 
tion, or  discharge  of  one  of  several  cotrustees  the  trust  survives  to 
the  others.  When  a  trust  exists  without  any  appointed  trustee,  or 
where  all  the  trustees  renounce,  die,  or  are  discharged,  the  superior 
court  of  the  county  where  the  trust  property,  or  some  portion  of  it, 
is  situated,  must  appoint  another  trustee,  and  direct  the  execution  of 
the  trust.  The  court  in  its  discretion,  may  appoint  the  original  num- 
ber, or  any  less  number  of  trustees.  The  Superior  Court  must  ap- 
point a  trustee  whenever  there  is  a  vacancy,  and  the  declaration  of 
trust  does  not  provide  a  practical  method  of  appointment.  (In  all 
cases  of  appointment  of  any  trustee  or  trustees  by  any  court,  if  the 
cestui  que  trust-ent,  or  any  one  of  them  are  of  the  age  of  fourteen 
years,  they,  or  the  one  or  more  of  them  of  the  age  of  fourten  years, 
may  make  nomination  to  the  court,  and  unless  such  nominee  or  nomi- 


UNLAWFUL  DETAINER  355 


nees  are  incompetent,  to  discharge  the  duties  of  trustee,  the  court 
must  appoint  such  nominee,  or  nominees,  as  trustee,  or  trustees, 
as  the  case  may  be.  The  Superior  Court  may  remove  any  trustee 
who  has  violated  or  is  unfit  to  execute  the  trust,  or  may  accept  the 
resignation  of  a  trustee. 

No  trust  in  relation  to  real  property  is  valid  unless  created  or  de- 
clared: (1.  By  a  \vritten  instrument,  subscribed  by  the  trustee,  or 
by  his  agent  thereto  authorized  in  writing;  2.  By  the  instrument 
under  which  the  trustee  claims  the  estate  affected;  or,  3.  By  opera- 
tion of  law. 

Tunnel  Rights:      See  Mining  Law. 

Undue  InHuence  is  (a)  the  use  of  confidence  or  authority  by  one 
person  for  the  purpose  of  obtaining  an  unfair  advantage  over  an- 
other when  the  one  has  confidence  reposed  in  him  by  the  other,  or 
when  the  one  has  real  or  apparent  authority  over  the  other  (b)  in 
taking  an  unfair  advantage  of  another's  weakness  of  mind;  or  (c) 
in  taking  a  grossly  oppressive  and  unfair  advantage  of  another's 
necessities  or  distress.     See  Trusts. 

Unfair  means  that  the  employer  had  refused  to  comply  with  the 
conditions  upon  which  union  men  would  consent  to  remain  in  its 
employ  or  handle  material  supplied  by  him. 

Unla'wful   Detainer: 

A  tenant  of  real  property  for  a  term  of  less  than  life — is 
guilty  of  unlawful  detainer  when 

(1)  he  continues  in  possession  (in  person  or  by  subtenant)  of 
the  property,  or  any  part  of  it,  after  the  expiration  of  the  term 
for  which  it  is  let  to  him,  and  does  not  have  the  permission  of  his 
landlord  to  do  so.  In  case  of  a  tenancy  at  will,  however,  there  must 
be  a  thirty  day  notice  to  terminate  the  tenancy. 

(2)  he  continues  in  possession  (in  person  or  by  subtenant)  with- 
out the  permission  of  the  landlord — after  default  in  the  payment 
of  rent  under  the  terms  of  the  lease  or  agreement  under  which  the 
property  is  held,  and  AFTER  three  days  notice  in  writing  has 
been  served  upon  him.  This  notice  must  require  the  payment  of 
the  amount  which  is  due,  or  possession  of  the  property.  Such 
notice  may  be  served  at  any  time  within  one  year  after  the  rent 
becomes  due. 

In  case  of  tenancy  on  agricultural  lands,  the  tenant  shall  be  en- 
titled to  hold  possession  for  one  more  year,  provided   he  had  held 


356  WAGES 


possession   for  more   than   sixty   days   after   the    expiration    of   the 
term  without  any  demand  or  notice  to  quit. 

(3)  he  continues  in  possession  (in  person  or  by  subtenant) 
after  failure  or  neglect  to  perform  conditions  or  covenants  of  the 
lease  or  agreement  under  which  the  property  is  held — including 
the  covenant  not  to  assign  or  sublet — except  the  agreement  for 
payment  of  rent, — and  three  days  after  written  notice  shall  have 
been  served  upon  him,  requiring  the  performance  of  such  conditions 
or  covenants,  or  the  possession  of  the  property.  If  these  coven- 
ants are  performed,  or  the  rent  is  paid,  within  the  three  days,  the 
lease  is  thus  saved  from  being  forfeited.  But  if  these  terms  or 
covenants  cannot  be  performed,  then  no  notice  needs  to  be  given. 

(4)  Any  tenant  or  subtenant  assigning,  subletting  or  committing 
waste  upon  the  rented  premises  (contrary  to  the  covenants  of  his 
lease)  thus  terminates  the  lease.  The  landlord  is  entitled  to  posses- 
sion of  the  premises  upon  service  of  a  three  day  notice  to  quit,  up- 
on the  person  in  possession. 

One  must  be  careful  about  the  service  of  these  notices.  Unless 
it  is  accurately  done,  it  will  be  of  no  avail. 

Notice  must  be  given  (1)  by  delivering  a  copy  to  the  tenant 
personally,  or  (2)  by  leaving  a  copy  with  some  person  of  suitable 
age  and  discretion,  at  either  the  place  of  business  or  residence  of 
the  tenant — if  he  should  be  absent  from  such  place — AND  by 
sending  a  copy  by  mail  to  him  at  his  place  of  residence;  or  (3)  if 
such  place  of  residence  or  business  cannot  be  ascertained,  or  a 
person  of  suitable  age  and  discretion  cannot  be  found  there — then 
the  notice  must  be  affixed  in  a  conspicuous  place  on  the  prop- 
erty, and  a  copy  deliverd  to  a  person  residing  there  (if  there  is 
such  person),  AND  a  copy  sent  by  mail  to  the  tenant,  addressed 
at  the  place  where  the  property  is  situated. 

Usury  Law:     See  Interest. 

Torrena  Titl«:     See  Real  Estate. 

Value:     See  Real  Estate;  Opinions;  Warehouse  Receipts. 

Vein:      See  Mining. 

Vehicles:     See  Highways;  Auto;  Motor  Vehicle  Law. 

Vendor'*  Lien:  See  also  Personal  Property;  Stoppage  in  Transit; 
Liens. 

Wages:  See  Liens;  Exemptiory-;  Attachment;  Employer  and  Em- 
ployee; Union  Labor;  Action^  Attorney's  Fee. 


WAGES  357 


WAGES  PREFERRED — -In  assignments,  administration,  etc. 
When  any  assignment,  whetTier  voluntary  or  involuntary,  is  made 
for  the  benefit  of  the  creditors  of  the  assignor,  or  results  from  any 
proceeding  in  insolvency  commenced  against  him,  the  wages  and 
salaries  of  miners,  mechanics,  salesmen,  servants,  clerks,  laborers, 
and  other  persons,  for  services  rendered  for  him  within  sixty  days 
prior  to  such  assignment,  or  to  the  commencement  of  such  proceed- 
ing, and  not  exceeding  one  hundred  dollars  each,  constitute  pre- 
ferred claims,  and  must  be  paid  by  the  trustee  or  assignee  before 
the  claim  of  any  creditor  of  the  assignor  or  insolvent.  Upon  the 
death  of  any  employer,  the  wages,  not  exceeding  one  hundred  dol- 
lars in  amount,  of  each  miner,  mechanic,  salesman,  clerk,  servant, 
laborer,  or  other  employee,  for  work  done  or  services  rendered 
within  sixty  days  prior  to  such  death,  must  be  paid  before  any  other 
claim  against  the  estate  of  such  employer,  except  his  funeral  ex- 
penses, and  expenses  of  the  last  sickness,  the  allowance  to  the  widow 
and  infant  children,  and  the  charges  and  expenses  of  administra- 
tion. Upon  the  levy  of  any  attachment  or  execution,  not  founded 
upon  a  claim  for  labor,  any  miner,  mechanic,  salesman,  servant, 
clerk,  laborer,  or  other  person  who  has  performed  work  or  rendered 
services  for  the  defendant  within  sixty  days  prior  to  the  levy,  may 
file  a  verified  statement  of  his  claim  therefor  with  the  officer  execut- 
ing the  writ,  and  give  copies  thereof  to  the  debtor  and  the  creditor 
and  such  claim,  not  exceeding  one  hundred  dollars,  unless  disputed, 
must  be  paid  by  such  officer  from  the  proceeds  of  such  levy  remain- 
ing in  his  hands  at  the  filing  of  such  statement.  If  any  claim  is 
disputed,  within  the  time,  and  in  the  manner  prescribed  the  claim- 
ant must  within  ten  days  thereafter  commence  an  action  for  the 
recovery  of  his  demand,  which  action  must  be  prosecuted  with  due 
diligence,  or  his  claim  to  priority  of  payment  is  forever  barred. 

Whenever  an  employer  discharges  an  employee,  the  wages  or 
compensation  for  labor  or  service  earned  and  unpaid  at  the  time 
of  such  discharge  shall  become  due  and  payable  immediately. 
Whenever  an  employee  not  having  a  written  contract  for  a  definite 
period  quits  or  resigns  his  employment,  the  wages  or  compensation 
shall  become  due  and  payable  not  later  than  seventy-two  hours 
thereafter,  unless  such  employee  shall  have  given  seventy-two  hours 
previous  notice  of  his  intention   to  quit,   in  which  latter  case  .such 


358  WAGES 


employee  shall  be  entitled  to  his  wages  or  compensation  at  the  time 
of  quitting. 

All  wages  or  compensation  other  than  those  mentioned  in  the 
preceding  paragraph  earned  by  any  person  in  any  employment  not 
exempt  by  section  eleven,  shall  become  due  and  payable  semi- 
monthly or  twice  during  each  calendar  month,  on  days  to  be  des- 
ignated in  advance  by  the  employer  as  the  regular  days;  provided, 
however,  that  services  rendered  between  the  first  and  fifteenth 
days,  inclusive  of  any  calendar  month  shall  be  paid  for  between 
the  sixteenth  and  the  twenty-sixth  day  of  the  month  during  which 
services  were  rendered,  and  for  all  services  rendered  between  the 
sixteenth  and  the  last  day,  inclusive,  of  any  calendar  month,  said 
services  shall  be  paid  for  between  the  first  and  tenth  day  of  the 
following  month;  provided,  however,  that  in  agricultural,  viticul- 
tural  and  horticultural  pursuits,  in  stock  or  poultry  raising,  and  in 
household  domestic  service,  and  when  the  employees  in  the  said 
employments  are  boarded  and  lodged  by  the  employer,  the  wages  or 
compensation  due  any  employee  remaining  in  such  employment  shall 
become  due  and  payable  monthly  or  once  in  each  calendar  month, 
on  a  day  designated  in  advance  by  the  employer  as  the  regular  pay 
day,  but  no  two  successive  such  pay  days  to  be  more  than  thirty- 
one  days  apart,  and  the  payment  or  settlement  shall  include  all 
amounts  due  for  labor  or  service  up  to  the  regular  pay  day. 

Such  wages  or  compensation  shall  include  all  amounts  for  labor 
or  service  performed  by  employees  of  every  description,  whether 
the  amount  is  fixed  or  ascertained  by  the  standard  of  time,  task, 
piece,  or  other  method  of  calculating  the  same,  or  whether  the 
labor  or  service  is  performed  under  contract,  subcontract,  partner- 
ship, subpartnership,  station  plan,  or  other  agreement  for  the  per- 
formance of  labor  or  service;  provided,  that  the  labor  or  service  to 
be  paid  for  is  performed  personally  by  the  person  demanding  pay- 
ment. Nothing  contained  here  shall  in  any  way  limit  or  prohibit 
the  payment  of  wages  or  compensation  at  more  frequent  intervals, 
or  in  greater  amounts,  or  in  full  when  or  before  due. 

Every  employer  shall  post  and  keep  posted  conspicuously  at  the 
place  of  work,  if  practicable,  or  otherwise  where  it  can  be  seen  as 
employees  come  or  go  to  their  place  of  work,  or  at  the  office  or 
nearest  agency  for  payment  kept  by  the  employer,  a  notice  specify- 
ing the  regular  pay  days  and  the  time  and  place  of  payment,  also 


WAGES  359 


any  changes  in  those  regards  occuring  from  time  to  time.  Every 
employee  who  is  discharged  shall  be  paid  at  the  place  of  discharge, 
and  every  employee  who  quits  or  resigns  shall  be  paid  at  the  office 
or  agency  of  the  employer  in  the  county  or  city  and  county  where 
such  employee  has  been  performing  the  labor  or  service  for  the 
employer.  All  payments  of  money  or  compensation  shall  be  made 
in  the  manner  provided  by  law.  In  the  happening  of  any  strike, 
the  unpaid  wages  or  compensation  earned  by  such  striking  em- 
ployees shall  become  due  and  payable  on  the  employer's  next  regu- 
lar pay  day,  and  th«  payment  or  settlement  shall  include  all 
amounts  due  such  striking  employees  without  abatement  or  reduc- 
tion, and  the  employer  shall  return  to  each  such  striking  employee 
any  deposit  or  money  or  other  guaranty  required  by  him  from 
such  employee  for  the  faithful  performance  of  the  duties  of  the 
employment.  Any  violation  of  these  provisions  shall  be  punishable 
as  for  a  misdemeanor,  and  any  failure  to  post  any  such  notice 
shall  be  deemed  prima  facie  evidence  of  such  violation. 

In  the  event  that  an  employer  shall  wilfully  fail  to  pay,  without 
abatement  or  reduction,  any  wages  or  compensation  of  any  em- 
ployee who  is  discharged  or  who  resigns  or  quits,  as  in  section 
one  of  this  act  provided,  then  as  a  penalty  for  such  nonpayment 
the  wages  or  compensation  of  such  employees  shall  continue  from 
the  due  date  of  it  at  the  same  rate  until  paid,  or  until  an  action 
for  it  shall  be  commenced;  provided,  that  in  no  case  shall  such 
wages  continue  for  more  than  thirty  days;  and  provided,  further, 
that  no  such  employee  who  secrets  or  absents  himself  to  avoid 
payment  to  him,  or  who  refuses  to  receive  the  payment  when  fully 
tendered  to  him,  including  any  such  penalty  then  accrued,  shall 
be  entitled  to  any  benefit  under  this  act  for  such  time  as  he  so 
avoids  payment. 

Any  person,  firm,  association,  or  corporation,  or  agent,  manager, 
superintendent,  or  officer  of  it,  who  having  the  ability  to  pay,  shall 
wilfully  refuse  to  pay  the  wages  due  and  payable  when  demanded, 
as  herein  provided,  or  falsely  deny  the  amount  or  validity  of  them, 
or  that  the  same  is  due,  with  intent  to  secure  for  himself,  his 
employer  or  other  person,  any  discount  upon  such  indebtedness, 
or  with  intent  to  annoy,  harass,  or  oppress,  or  hinder,  or  delay,  or 
defraud,   the   person   to  whom  such  indebtedness  is   due,   shall,   in 


3eo  WAREHOUSEMAN 


addition  to  any  other  penalty  imposed  upon  him  by   this  act,  be 
guilty  of  a  misdemeanor. 

These  rules  do  not  apply  to  the  payment  of  wages  or  compensation 
of  employees  directly  employed  by  any  county,  city  and  county, 
incorporated  city  or  town,  or  other  municipal  corporation;  nor  to 
employees  directly  employed  by  the  state,  any  department,  bureau, 
office,  board,  commission,  or  institution  of  it. 

ASSIGNMENT  OF  WAGES:  No  assignment  of,  or  order  for 
wages  or  salary  shall  be  valid  unless  made  in  writing  by  the  per- 
son by  whom  the  said  wages  or  salary  are  earned  and  no  assignment 
of,  or  order  for,  wages  or  salary  made  by  a  married  person  shall  be 
valid  unless  the  written  consent  of  the  husband  or  wife  of  the  per- 
son making  such  assignment  or  order  is  attached  to  such  order  or 
aFsignment.  No  assignment  of,  or  order  for,  wages  or  salary  shall 
be  valid  unless  at  the  time  of  the  making  thereof,  such  wages  or 
salary  have  been  earned,  except  for  the  necessities  of  life  and  then 
only  to  the  person  or  persons  furnishing  such  necessities  of  life 
directly  and  then  only  for  the  amount  needed  to  furnish  such  neces- 
sities. Any  power  of  attorney  to  assign  or  collect  wages  or  salary 
shall  be  revocable  at  any  time  by  the  maker  of  it. 

Warehouseman:  See  Liens;  Storage;  Deposit;  Food  Warehouse- 
man; Net  Container  Law;  Weights  and  Measures;  Fires;  Warehouse 
Insurance. 

A  warehouseman,  wharfinger,  or  other  person  doing  a  storage 
business  must  not  issue  any  receipt  or  voucher  for  any  merchandise, 
grain,  or  other  product  or  thing  of  value,  to  any  person  purporting 
to  be  the  owner  of  it,  nor  to  any  person  as  security  for  any  indebted- 
ness or  for  the  performance  of  any  obligation,  unless  such  merchan- 
dise, grain,  or  other  product,  commodity,  or  thing  has  been,  in  good 
faith,  received  by  such  warehouseman,  wharfinger,  or  other  person, 
and  is  in  his  store  or  under  his  control  at  the  time  of  issuing  his 
receipt;  nor  must  any  second  receipt  for  any  such  property  be  issued 
while  a  former  receipt  for  any  part  of  it  is  outstanding  and  un- 
cancelled. 

No  warehouseman,  wharfinger,  or  other  person  must  sell 
or  encumber,  ship,  transfer,  or  remove  beyond  his  im- 
mediate control  any  property  for  which  a  receipt  has  been 
given,  without  the  consent  in  writing  of  the  person  hold- 
ing  such   receipt   plainly   indorsed    on    it    in    ink.     Warehouse    re- 


WAKEHOUSE  RECEIPTS  361 


ceipts  for  property  stored  are  of  two  classes:  first,  transferable  or 
negotiable;  and  second,  non-transferable  or  non-negotiable.  Under 
the  first  of  these  classes  the  property  is  transferable  by  indorsement 
of  the  party  to  whose  order  such  receipt  was  issued,  and  such  in- 
dorsement is  a  valid  transfer  to  the  property  represented  by  the 
receipt,  and  may  be  in  blank  or  in  order  of  another.  All  warehouse 
receipts  must  distinctly  state  on  their  face  for  what  they  are  issued 
and  its  brands  and  distinguishing  marks  and  the  rate  of  storage  per 
month  or  season,  and,  in  the  case  of  grain,  the  kind,  the  number  of 
sacks  and  pounds.  If  a  receipt  is  not  negotiable,  it  must  have  printed 
across  its  face,  in  red  ink,  in  bold,  distinct  letters,  the  word  "Non- 
negotiable."  If  a  negotiable  receipt  is  issued  for  any  property, 
neither  the  person  issuing  it  nor  any  other  person  into  whose  care 
or  control  the  property  comes  must  deliver  any  part  thereof  without 
indorsing  on  the  back  of  the  receipt,  in  ink,  the  amount  and  date  of 
the  delivery;  nor  can  he  be  allowed  to  make  an  offset,  claim,  or  de- 
mand other  than  is  expressed  on  the  face  of  the  receipt,  when  called 
upon  to  deliver  any  property  for  which  it  was  issued.  If  a  non- 
negotiable  receipt  is  issued  for  any  property,  neither  the  person  issu- 
ing nor  any  other  person  in  whose  care  or  control  the  property  comes 
must  deliver  any  part  of  it,  except  upon  the  written  order  of  the 
person  to  whom  the  receipt  was  issued. 

No  warehouseman  or  other  person  doing  a  general  storage  busi- 
ness is  responsible  for  any  loss  or  damage  to  the  property  by  fire 
while  in  his  custody,  if  he  exercises  reasonable  care  and  diligence 
for  its  protection  and  preservation  (except,  perhaps,  where  his  ad- 
vertisements are  misleading).  Every  warehouseman,  wharfinger, 
or  other  person  who  violates  any  of  the  provisions  of  the  preceding 
paragraphs,  is  guilty  of  a  felony. 

Warehouse  Receipts:     See  Warehouseman. 

Section  1.  That  it  shall  be  unlawful  for  any  corporation,  fii-m 
or  person,  their  agents  or  employees,  to  issue,  sell,  pledge,  assign  or 
transfer  in  this  state,  any  i-eceipt,  certificate  or  other  written  in- 
strument purporting  to  be  a  warehouse  receipt,  or  in  the  similitude 
of  a  warehouse  receipt  or  designed  to  be  understood  as  a  warehouse 
receipt,  for  goods,  wares  or  merchandise  stored  or  deposited,  or 
claimed  to  be  stored  or  deposited,  in  any  warehouse,  public  or  pri- 
v*te,  in  any  other  state,  unless  such  receipt,   certificate   or  other 


362  WAREHOUSE  RECEIPTS 


written   instrument,   shall   have   been    issued   by   the   warehousemen 
operating  such  warehouse. 

Sec.  2.  It  shall  be  unlawful  for  any  corporation,  firm  or  person, 
their  agents  or  employees,  to  issue,  sell,  pledge,  assign  or  transfer 
in  this  state,  any  receipt,  certificate  or  other  written  instrument  for 
goods,  wares  or  merchandise  claimed  to  be  stored  or  deposited,  in 
any  warehouse,  public  or  private,  in  any  other  state,  knowing  that 
there  is  no  such  warehouse  located  at  the  place  named  in  such  re- 
ceipt, certificate  or  other  written  instrument,  or  if  there  be  a  ware- 
house at  such  place,  knowing  that  there  are  no  goods,  wares  or  mer- 
chandise stored  or  deposited  therein  as  specified  in  such  report,  cer- 
tificate or  other  written  instrument. 

Sec.  3.  It  shall  be  unlawful  for  any  corporation,  firm  or  person, 
their  agents  or  employees,  to  issue,  sign,  sell,  pledge,  assign  or  trans- 
fer, in  this  state,  any  receipt,  certificate  or  other  written  instrument 
evidencing,  or  purporting  to  evidence,  the  sale,  pledge,  mortgage  or 
bailment  of  any  goods,  wares  or  merchandise  stored  or  deposited,  or 
claimed  to  be  stored  or  deposited,  in  any  warehouse,  public  or  pri- 
vate, in  any  other  state,  unless  such  receipt,  certificate  or  other  writ- 
ten instrument  shall  plainly  designate  the  number  and  location  of 
such  warehouse,  and  shall  also  set  forth  therein  a  full,  true  tind  com- 
plete copy  of  the  receipt  issued  by  the  warehouseman  operating  such 
warehouse  wherein  such  goods,  wares  or  merchandise  are  stored  or 
deposited,  or  are  claimed  to  be  stored  or  deposited:  Provided,  that 
the  provisions  of  this  section  shall  not  apply  to  the  issue,  signing, 
sale,  pledge,  assignment  or  transfer  of  bona  fide  warehouse  receipts 
issued  by  the  warehouseman  operating  public  or  bonded  warehouses 
in  other  states,  according  to  the  laws  of  the  state  wherein  such  •■.vare- 
houses  may  be  located. 

Sec.  4.  Every  corporation,  firm  or  person,  or  agent,  or  employee, 
who  shall  knowingly  violate  any  of  the  provisions  of  this  act,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction,  shall  be 
fined  in  any  sum  not  less  than  fifty  nor  more  than  one  thousand 
dollars,  to  which  may  be  added  imprisonment  in  the  county  jail  for 
any  period  not  exceeding  six  months.  , 

Warehouse  Receipts    (Uniform). 

Section  1.  Warehouse  receipts  may  be  issued  by  any  warehouse- 
man. 

Sec.  2.     Wareliouse  receipts  need  not  be  in  any  particiiifij   lorm,, 


WAREHOUSE  RECEIPTS  363 


but  every  such  receipt  must  embody  within  its  written  or  printed 
terms — 

(a)  The  location  of  the  warehouse  where  the  goods  are  stored, 
(b)  The  date  of  issue  of  the  receipt,  (c)  The  consecutive  number  of 
the  receipt,  (d)  A  statement  whether  the  goods  received  will  be  de- 
livered to  the  bearer,  or  to  a  specified  person,  or  to  a  specified  per- 
son or  his  order,  (e)  The  rate  of  storage  charges,  (f)  A  description 
of  the  goods  or  of  the  packages  containing  them,  (g)  The  signature 
of  the  warehouseman,  which  may  be  made  by  his  authorized  agent, 
(h)  If  the  receipt  is  issued  for  goods  of  which  the  warehouseman  is 
owner,  either  solely  or  jointly  or  in  common  with  others,  the  fact  of 
such  ownership,  and  (i)  A  statement  of  the  amount  of  advances 
made  and  of  liabilities  incurred  for  which  the  warehouseman  claims 
a  lien.  If  the  precise  amount  of  such  advances  made  or  of  such 
liabilities  incurred  is,  at  the  time  of  the  issue  of  the  receipt,  unknown 
to  the  warehouseman  or  to  his  agent  who  issues  it,  a  statement  of  the 
fact  that  advances  have  been  made  or  liabilities  incurred  and  the  pur- 
pose of  it  is  sufficient. 

A  warehouseman  shall  be  liable  to  any  person  injured  by  it  for  all 
damage  caused  by  the  omission  from  a  negotiable  receipt  of  any  of 
the  terms  herein  required. 

Sec.  3.  A  warehouseman  may  insert  in  a  receipt,  issued  by  him, 
any  oth-er  terms  and  conditions,  provided  that  such  terms  and  con- 
ditions shall  not — (a)  Be  contrary  to  the  provisions  of  this  act.  (b) 
In  anywise  impair  his  obligation  to  exercise  that  degree  of  care  in 
the  safekeeping  of  the  goods  intrusted  to  him  which  a  reasonably 
careful  man  would  exercise  in  regard  to  similar  goods  of  his  own. 

Sec.  4.  A  receipt  in  which  it  is  stated  that  the  goods  received  will 
be  delivered  to  the  depositor,  or  to  any  other  specified  person,  is  a 
non-negotiable  receipt. 

Sec.  5.  A  receipt  in  which  it  is  stated  that  the  goods  received  will 
be  delivered  to  the  bearer,  or  to  the  order  of  any  person  named  in 
such  receipt  is  a  negotiable  receipt.  No  provision  shall  be  inserted 
in  a  negotiable  receipt  that  it  is  non-negotiable.  Such  provision,  if 
inserted,  shall  be  void. 

Sec.  6.  When  more  than  one  negotiable  receipt  is  issued  for  the 
same  goods,  the  word  "duplicate"  shall  be  plainly  placed  upon  the 
face  of  every  such  receipt,  except  the  one  first  issued.  A  warehouse- 
man shall  be  liable  for  all  damage  caused  by  his  failure  so  to  do 


;J64  WAREHOUSE  RECEIPTS 


to  anyone  who  purchased  the  subsequent  receipt  for  value  suppos- 
ing it  to  be  an  original,  even  though  the  purchase  be  after  the  de- 
livery of  the  goods  by  the  warehouseman  to  the  holder  of  the  original 
receipt. 

Sec.  7.  A  non-negotiable  receipt  shall  have  plainly  placed  upon  its 
face  by  the  warehouseman  issuing  it,  "non-negotiable,"  or  "not  nego- 
tiable." In  case  of  the  warehouseman's  failure  so  to  do,  a  holder  of 
the  receipt  who  purchased  it  for  value  supposing  it  to  be  negotiable, 
may  at  his  option,  treat  such  receipt  as  imposing  upon  the  warehouse- 
man the  same  liabilities  he  would  have  incurred  had  the  receipt  been 
negotiable. 

This  section  shall  not  apply,  however,  to  letters,  memorjinda.  or 
written  acknowledgments  of  an  informal  character. 

Sec.  8.  A  warehouseman,  in  the  absence  of  some  lawful  excuse 
provided  by  this  act,  is  bound  to  deliver  the  goods  upon  a  demand 
made  either  by  the  holder  of  a  receipt  for  the  goods  or  by  the  de- 
positor, if  such  demand  is  accompanied  with — (a)  An  offer  to  satisfy 
the  warehouseman's  lien,  (b)  An  offer  to  surrender  the  receipt  if 
negotiable,  with  such  indorsements  as  would  be  necessary  for  the 
negotiation  of  the  receipt,  and  (c)  A  readiness  and  willingness  to 
sign,  when  the  goods  are  delivered,  an  acknowledgment  that  they 
have  been  delivered,  if  such  signature  is  requested  by  the  warehouse- 
man. 

In  case  the  warehouseman  refuses  or  fails  to  deliver  the  goods  in 
compliance  with  a  demand  by  the  holder  or  depositor  so  accompanied, 
the  burden  shall  be  upon  the  warehouseman  to  establish  the  exist- 
ence of  a  lawful  excuse  for  such  refusal. 

Sec.  9.  A  warehouseman  is  justified  in  delivering  the  goods  sub- 
ject to  the  provisions  of  the  three  following  sections,  to  one  who  is — 
(a)  The  person  lawfully  entitled  to  the  possession  of  the  goods,  or 
his  agent,  (b)  A  person  who  is  either  himself  entitled  to  delivery 
by  the  terms  of  a  non-negotiable  receipt  issued  for  the  goods,  or 
who  has  written  authority  from  the  person  so  entitled  either  indorsed 
upon  the  receipt  or  written  upon  another  paper,  or  (c)  A  person 
in  possession  of  a  negotiable  receipt  by  the  terms  of  which  the  goods 
are  deliverable  to  him  or  order  or  to  bearer,  or  which  has  been  in- 
dorsed to  him  or  in  blank  by  the  person  to  whom  delivery  was  prom- 
ised by  the  terms  of  the  receipt  or  by  his  mediate  or  immediate  in- 
dorsee. 


WAREHOUSE  RECEIPTS  365 


Soc.  10.  Where  a  warehouseman  delivers  the  goods  to  one  who  is 
not  in  fact  lawfully  entitled  to  the  possession  of  them,  the  ware- 
houseman shall  be  liable  as  for  conversion  to  all  having  a  right  of 
property  or  possession  in  the  goods  if  he  delivered  the  goods  other- 
wise than  as  authorized  by  subdivisions  (b)  and  (c)  of  the  preced- 
ing section  and  though  he  delivered  the  goods  as  authorized  by  said 
subdivision  he  shall  be  so  liable,  if  before  such  delivery  he  had  either 
(a)  Been  requested,  by  or  on  behalf  of  the  person  lawfully  entitled 
to  a  right  of  property  or  possession  in  the  goods,  not  to  make  such 
delivery,  or  (b)  Had  information  that  the  delivery  about  to  be  made 
was  to  one  not  lav/fully  entitled  to  the  possession  of  the  goods. 

Sec.  11.  Except  as  provided  in  section  36,  where  warehouseman 
delivers  goods  for  which  he  had  issued  a  negotiable  receipt,  the 
negotiation  of  which  would  transfer  the  right  to  the  possession  of 
the  goods,  and  fails  to  take  up  and  cancel  the  receipt,  he  shall  be 
liable  to  anyone  who  purchases  for  value  in  good  faith  such  receipt, 
for  failure  to  deliver  the  goods  to  him,  whether  such  purchaser  ac- 
quired title  to  the  receipt  before  or  after  the  delivery  of  the  goods 
by  the  warehouseman. 

Sec.  12.  Except  as  provided  in  section  36,  where  a  warehouseman 
delivers  part  of  the  goods  for  which  he  had  issued  a  negotiable  re- 
ceipt and  fails  either  to  take  up  and  cancel  such  receipt,  or  to  place 
plainly  upon  it  a  statement  of  what  goods  or  packages  have  been  de- 
livered he  shall  be  liable,  to  anyone  who  purchases  for  value  in  good 
faith  such  receipt,  for  failure  to  deliver  all  the  goods  specified  in  the 
receipt,  whether  such  purchaser  acquired  title  to  the  receipt  before 
or  after  the  delivery  of  any  portion  of  the  goods  by  the  warehouse- 
man. 

Sec.  13.  The  alteration  of  a  receipt  shall  not  excuse  the  ware- 
houseman who  issued  it  from  any  liability  if  such  alteration  was  (a) 
Immaterial,  (b)  Authorized,  or  (c)  Made  without  fraudulent  intent. 
If  the  alteration  was  authorized,  the  warehouseman  shall  be  liable 
according  to  the  terms  of  the  receipt  as  altered.  If  the  alteration 
was  unauthorized,  but  made  without  fraudulent  intent,  the  ware- 
houseman shall  be  liable  according  to  the  terms  of  the  receipt,  as 
they  were  before  alteration.  Material  and  fraudulent  alteration  of 
a  receipt  shall  not  excuse  the  warehouseman  who  issued  it  from  lia- 
bility to  deliver,  according  to  the  terms  of  the  receipt  as  originally 
issued,  the  goods  for  which  it  was  issued,  but  shall  excuse  him  from 


\m  WAREHOUSE  RECEIPTS 


any  other  liability  to  the  person  who  made  the  alteration  and  to 
any  person  who  took  with  notice  of  the  alteration.  Any  purchaser 
of  the  receipt  for  value  without  notice  of  the  alteration  shall  ac- 
quire the  same  rights  against  the  warehouseman  which  such  pur- 
chaser would  have  acquired  if  the  receipt  had  not  been  altered  at 
the  time  of  the  purchase. 

Sec.  14.  Where  a  negotiable  receipt  has  been  lost  or  destroyed, 
a  court  of  competent  jurisdiction  may  order  the  delivery  of  the 
goods  upon  satisfactory  proof  of  such  loss  or  destruction  and  upon 
the  giving  of  a  bond  with  sufficient  sureties  to  be  approved  by  the 
court  to  protect  the  warehouseman  from  any  liability  or  expense, 
which  he  or  any  person  by  such  delivery  may  incur  by  reason  of  the 
original  receipt  remaining  outstanding.  The  court  may  also  in  its 
discretion  order  the  payment  of  the  warehouseman's  reasonable  costs 
and  counsel  fees. 

The  delivery  of  the  goods  under  an  order  of  the  court  as  provided 
in  this  section,  shall  not  relieve  the  v/arehouseman  from  liabilities 
to  a  person  to  whom  the  negotiable  receipt  has  been  or  shall  be  ne- 
gotiated for  value  without  notice  of  the  proceedings  or  of  the  deliv- 
ery of  the  goods. 

Sec.  15.  A  receipt  upon  the  face  of  which  the  word  "duplicate" 
is  plainly  placed  is  a  representation  and  warranty  by  the  warehouse- 
man that  such  receipt  is  an  accurate  copy  of  an  original  receipt  prop- 
erly issued  and  uncanceled  at  the  date  of  the  issue  of  the  duplicate, 
but  shall  impose  upon  him  no  other  liability. 

Sec.  16.  No  title  or  right  to  the  possession  of  the  goods,  on  the 
part  of  the  warehouseman,  unless  such  title  or  right  is  derived  directly 
or  indirectly  from  a  transfer  made  by  the  depositor  at  the  time  of  or 
subsequent  to  the  deposit  for  storage,  or  from  the  warehouseman's 
lien,  shall  excuse  the  warehouseman  from  liability  for  refusing  to 
deliver  the  goods  according  to  the  terms  of  the  receipt. 

Sec.  17.  If  more  than  one  person  claim  the  title  or  possession  of 
the  goods,  the  warehouseman  may,  either  as  a  defense  of  an  action 
brought  against  him  for  nondelivery  of  the  goods,  or  as  an  original 
suit,  whichever  is  appropriate,  require  all  known  claimants  to  inter- 
plead. 

Sec.  18.  If  some  one  other  than  the  depositor  or  person  claiming 
under  him  has  a  claim  to  the  title  or  possession  of  the  goods,  and  the 
warehouseman   has   information   of   such   claim,    the    warehouseman 


\VARi:iIOUSE  RECEIPTS  367 


shall  be  excused  from  liability  for  refusing  to  deliver  the  goods, 
either  to  the  depositor  or  person  claiming  under  him  or  to  the  ad- 
verse claimant,  until  the  warehouseman  has  had  a  reasonable  time  to 
ascertain  the  validity  of  the  adverse  claim  or  to  bring  legal  proceed- 
ings to  compel  all  claimants  to  interplead.  If  such  adverse  claimant 
shall  not  bring  suit  and  serve  summons  on  the  vv^arehouseman  within 
forty-eight  hours  after  the  service  of  notice  of  his  adverse  claim, 
such  failure  shall  act  as  a  complete  abandonment  of  such  adverse 
claim. 

Sec.  19.  Except  as  provided  in  the  two  preceding  sections  and  in 
sections  9  and  36,  no  right  or  title  of  a  third  person  shall  be  a  de- 
fense to  an  action  brought  by  the  depositor  or  person  claiming  un- 
der him  against  the  warehouseman  for  failure  to  deliver  the  goods 
according  to  the  terms  of  the  receipt. 

Sec.  20.  A  warehouseman  shall  be  liable  to  the  holder  of  a  receipt 
for  damages  caused  by  the  nonexistence  of  the  goods  or  by  the  fail- 
ure of  the  goods  to  correspond  with  the  description  of  them  in  the 
receipt  at  the  time  of  its  issue.  If,  however,  the  goods  are  described 
in  a  receipt  merely  by  a  statement  of  marks  or  labels  upon  them,  or 
upon  packages  containing  them,  or  by  a  statement  that  the  goods  are 
said  to  be  goods  of  a  certain  kind,  or  that  packages  containing  the 
goods  are  said  to  contain  goods  of  a  certain  kind,  or  by  v/ords  of  like 
purport,  such  statements,  if  true,  shall  not  make  liable  the  ware- 
houseman issuing  the  receipt,  although  the  goods  are  not  of  th.3  kind 
which  the  marks  or  labels  upon  them  indicate,  or  of  the  kind  they 
were  said  to  be  by  the  depositor. 

Sec.  21.  A  warehouseman  shall  be  liable  for  any  loss  or  injury 
to  the  goods  caused  by  his  failure  to  exercise  such  care  in  regard 
to  them  as  a  reasonably  careful  ov/ner  of  similar  goods  would  exer- 
cise, but  he  shall  not  be  liable,  in  the  absence  of  an  agreement  to 
the  contrary,  for  any  loss  or  injury  to  the  goods  v/hich  couM  not 
have  been  avoided  by  the  exercise  of  such  care. 

Sec.  22.  Except  as  provided  in  the  following  section,  a  ware- 
houseman shall  keep  the  goods  so  far  separate  from  goods  of  other 
depositors,  and  from  other  goods  of  the  same  depositor  for  which 
a  separate  receipt  has  been  issued,  as  to  permit  at  all  times  the  iden- 
tification and  redelivery  of  the  goods  deposited. 

Sec.  23.  If  authorized  by  agreement  or  by  custom,  a  warehouse- 
man may  mingle  fungible  goods  with  other  goods  of  the  same  kind 


368  AVAREHOUSE  RECEIPTS 


and  {?rade.  In  such  case  the  %'arious  depositors  of  the  mingled  goods 
shall  own  the  entire  mass  in  common,  and  each  depositor  shall  be  en- 
titled to  such  portion  of  them  as  the  amount  deposited  by  him  bear* 
to  the  whole. 

Sec.  24.  The  warehouseman  shall  be  severally  liable  to  each  de- 
positor for  the  care  and  redelivery  of  his  share  of  such  mass  to  the 
same  extent  and  under  the  same  circumstances  as  if  the  goods  had 
been  kept  separate. 

Sec.  25.  If  goods  are  delivered  to  a  warehouseman  by  the  owner 
or  by  a  person  whose  act  in  conveying  the  title  to  them  to  a  pur- 
chaser in  good  faith  for  value  would  bind  the  owner,  and  a  negotia- 
ble receipt  is  issued  for  them,  they  cannot  thereafter,  while  in  the 
possession  of  the  warehouseman,  be  attached  by  garnishment  or 
otherwise,  or  be  levied  upon  under  an  execution,  unless  the  receipt 
be  first  surrendered  to  the  warehouseman,  or  its  negotiation  en- 
joined. The  warehouseman  shall  in  no  case  be  compelled  to  deliver 
up  the  actual  possession  of  the  goods  until  the  receipt  is  surrendered 
to  him  or  impounded  by  the  court. 

Sec.  26.  A  creditor  whose  debtor  is  the  owner  of  a  negotiable 
receipt  shall  be  entitled  to  such  aid  from  courts  of  appropriate  juris- 
diction, by  injunction  or  otherwise,  in  attaching  such  receipt  or  in 
satisfying  the  claim  by  means  thereof  as  is  allowed  at  law  or  in 
equity,  in  regard  to  property  which  cannot  readily  be  attached  or 
levied  upon  by  ordinary  legal  process. 

Sec.   27  to  Sec.  36:     See  Liens. 

Sec.  37.  A  negotiable  receipt  may  be  negotiated  by  delivery — 
(a)  Where,  by  the  terras  of  the  receipt,  the  warehouseman  undertakes 
to  deliver  the  goods  to  the  bearer,  or  (b)  Where,  by  the  terms  of 
the  receipt,  the  warehouseman  undertakes  to  deliver  the  goods  to 
the  order  of  a  specified  person,  and  such  person  or  a  subsequent 
indorsee  of  the  receipt  has  indorsed  it  in  blank  or  to  bearer. 

Where,  by  the  terms  of  a  negotiable  receipt,  the  goods  are  deliv- 
erable to  bearer  or  where  a  negotiable  receipt  has  been  indorsed  in 
blank  or  to  bearer,  any  holder  may  indorse  the  same  to  himself  or  to 
any  other  specified  person,  and  in  such  case  the  receipt  shall  there- 
after be  negotiated  only  by  the  indorsement  of  such  indoi-see. 

Sec.  38.  A  negotiable  receipt  may  be  negotiated  by  the  indorse- 
ment of  the  person  to  whose  order  the  goods  are,  by  the  terms  of  the 
receipt,  deliverable.     Such  indorsement  may  be  in  blank,  to  bearer  or 


WAREHOUSE  RE(^E[PTS  369 


to  a  specified  person.  If  indorsed  to  a  specified  person,  it  may  be 
aprain  negrotiated  by  the  indorsement  of  such  person  in  blank,  to 
bearer  or  to  another  specified  person.  Subsequent  negotiations  may 
be  made  in  like  manner. 

Sec.  39.  A  receipt  which  is  not  in  such  form  that  it  can  be  nego- 
tiated by  delivery  may  be  transferred  by  the  holder  by  delivery  to  a 
purchaser  or  donee.  A  non-negotiable  receipt  can  not  be  negotiated, 
and  the  indorsement  of  such  a  receipt  gives  the  transferee  no 
additional  right. 

Sec.  40.  A  negotiable  receipt  may  be  negotiated — (a)  By  the 
owner  of  it,  or  (b)  By  any  person  to  whom  the  possession  or  custody 
of  the  receipt  has  been  intrusted,  or  if  at  the  time  of  such  intrusting 
the  receipt  is  in  such  form  that  it  may  be  regulated  by  delivery. 

Sec.  41.  A  person  to  whom  a  negotiable  receipt  has  been  duly 
negotiated  acquires  by  it — (a)  Such  title  to  the  goods  as  the  person 
negotiating  the  receipt  to  him  had  or  had  ability  to  convey  to  a 
purchaser  in  good  faith  for  value,  and  also  such  title  to  the  goods  as 
the  depositor  or  person  to  whose  order  the  goods  were  to  be  delivered 
by  the  terms  of  the  receipt  had  or  had  ability  to  convey  to  a  purchaser 
in  good  faith  for  value,  and 

(b)  The  direct  obligation  of  the  warehouseman  to  hold  possession 
of  the  goods  for  him  according  to  the  terms  of  the  receipt  as  fully 
as  if  the  warehouseman  had  contracted  directly  with  him. 

Sec.  42.  A  person  to  whom  a  receipt  has  been  transferred  but  not 
negotiated,  acquires  by  it,  as  against  the  transferrer,  the  title  to 
the  goods,  subject  to  the  terms  of  any  agreement  with  the  trans- 
ferrer. 

If  the  receipt  is  non-negotiable  such  person  also  acquires  the  right 
to  notify  the  warehouseman  of  the  transfer  to  him  of  such  receipt, 
and  by  it  to  acquire  the  direct  obligation  of  the  warehouseman  to 
hold  possession  of  the  goods  for  him  according  to  the  terms  of  the 
receipt. 

Before  the  notification  of  the  warehouseman  by  the  transferrer  or 
transferee  of  a  non-negotiable  receipt,  the  title  of  the  transferee  to 
the  goods  and  the  right  to  acquire  the  obligation  of  the  warehouse- 
man may  be  defeated  by  the  levy  of  an  attachment  or  execution  upon 
the  goods  by  a  creditor  of  the  transferrer,  or  by  a  notification  to  the 
warehouseman  by  the  transferrer  or  a  subsequent  purchaser  from  the 
transferrer  of  a  subsequent  sale  of  the  goods  by  the  transferrer. 


370  Av  /\  Hi^]  n  0  u  s  i^:  ke  c  e  i  p  t  s 


Sec.  43.  Where  a  negotiable  receipt  is  transfcn-ed  for  value  by 
delivery,  and  the  indorsement  of  the  tvaiiai'eiTei.'  is  essential  for  ne- 
gotiation, the  transferee  acquires  a  right  against  tho  transferrer  to 
compel  him  to  indorse  the  receipt,  unless  a  contrary  intention  ap- 
pears. The  negotiation  shall  take  effect  av,  of  tbo  timo  when  the  in- 
dorsement is  actually  made. 

Sec.  44.  A  person  who  for  vy,lue  negotiates  oc  transfers  a  receipt 
by  indorsement  or  deliverj/j  including  unc  who  a'ssigns  for  value  a 
claim  secured  by  a  receipt,  unlest;  a  eoutrary  intcntiou  apioears,  war- 
rants—  (a)  That  the  receipt  is  genuine,  (b)  That  ho  has  a  legal  right 
to  negotiate  or  transfer  it,  (c)  That  he  has  knowl-edge  of  no  fact 
which  would  impair  the  validity  or  worth  of  the  receipt,  and  (d) 
That  he  has  a  right  to  transfer  the  title  to  the  good??,  and  that  the 
goods  are  merchantable  or  fit  fox  a  particuiai-  puvpos."?  w!ienever  such 
warranties  Avould  have  been  implied,  if  the  contiact  of  the  parties 
had  been  to  transfer  without  a  receipt  the  goods  represented  by  it. 

Sec.  45.  The  indorsement  of  a  receipt  shaU  not  make  the  indor^er 
liable  for  any  failure  on  the  ])art  of  the  warehouseraaii  or  previous 
indorsers  of  the  receipt  t'j  fulfill  their  vespoctive  obli;j;at;ons. 

Sec.  46.  A  mortgagee,  pledgee  or  holder  for  security  of  a  receipt 
who  in  good  faith  demands  or  receivers  p.iyment  of  th.»  debt  for  which 
such  receipt  is  security,  v/hether  fioin  a  party  to  a  draft  drawn  for 
such  debt  or  from  any  other  person,  shall  not  by  so  doing  be  deemed 
to  represent  or  to  warrant  the  genuineness  of  suc'i  receipt  or  the 
quantity  or  quality  of  the  goods  de^-oribed  in  it. 

Sec.  47.  The  validity  of  the  negotiation  of  a  receipt  is  not  im- 
paired by  the  fact  that  such  negotiation  was  a  breach  of  duty  on  the 
part  of  the  person  making  the  negotiation,  or  by  the  fact  that  the 
owner  of  the  receipt  Avas  induced  by  fraud,  mistake,  or  duress  to  in- 
trust the  possession  or  custody  of  the  receipt  to  such  person,  if  the 
person  to  whom  the  receipt  v/a,s  nei';otiated,  or  a  person  to  whom 
the  receipt  was  subsequently  negotiat»>d,  p.iid  value  for  it,  v.'ithout 
notice  of  the  breach  of  duty,  or  fraud,  mistake,  or  duress. 

Sec.  48.  V/here  a  person  having  t;old,  mortgaged,  or  pledged  goods 
which  are  in  a  warehouse  and  for  v/hich  a  negotiable  receipt  has  been 
issued,  or  having  sold,  mortgaged,  oi'  pledged  the  negotiable  receipt 
representing  such  goods,  continues  in  pos.session  of  the  negotiable 
receipt,  the  subsequent  negotiation  of  it  by  that  person  under  any 
sale,  or  other  disposition  of  it  to  any  person  receiving  the  same  in 


WAREHOUSE  RECEIPTS  371 


good  faith,  for  value  and  without  notice  of  the  previous  sale,  mort- 
gage or  pledge,  shall  have  the  same  effect  as  if  the  first  purchaser  of 
the  goods  or  receipt  had  expressly  authorized  the  subsequent  nego- 
tiation. 

Sec.  49.  Where  a  negotiable  receipt  has  been  issued  for  goods,  no 
seller's  lien  or  right  of  stoppage  in  transitu  shall  defeat  the  rights 
of  any  purchaser  for  value  in  good  faith  to  whom  such  receipt  has 
been  negotiated,  whether  such  negotiation  be  prior  or  subsequent 
to  the  notification  to  the  warehouseman  who  issued  such  receipt  of 
the  seller's  claim  to  a  lien  or  right  of  stoppage  in  transitu.  Nor 
shall  the  warehouseman  be  obliged  to  deliver  or  justified  in  deliver- 
ing the  goods  to  an  unpaid  seller  unless  the  receipt  is  first  surren- 
dered for  cancellation. 

Sec.  50.  A  warehouseman,  or  any  officer,  agent,  or  servant  of  a 
warehouseman,  who  issues  or  aids  in  issuing  a  receipt  knowing  that 
the  goods  for  which  such  receipt  is  issued  have  not  been  actually  re- 
ceived by  such  warehouseman,  or  are  not  under  his  control  at  the 
time  of  issuing  such  receipt,  shall  be  guilty  of  a  crime,  and  upon 
conviction  shall  be  punished  for  each  offense  by  imprisonment  not 
exceeding  five  years,  or  by  a  fine  not  exceeding  five  thousand  dollars, 
or  by  both. 

Sec.  51.  A  warehouseman,  or  any  officer,  agent,  or  servant  of  a 
warehouseman,  who  fraudulently  issues  or  aids  in  fraudulently  issu- 
ing a  receipt  for  goods  knowing  that  it  contains  any  false  statement, 
shall  be  guilty  of  a  crime,  and  upon  conviction  shall  be  punished 
for  each  offense  by  imprisonment  not  exceeding  one  year,  or  by  a 
fine  not  exceeding  one  thousand  dollars,  or  by  both. 

Sec.  52.  A  warehouseman,  or  any  officer,  agent,  or  servant  of  a 
warehouseman,  who  issues  or  aids  in  issuing  a  duplicate  or  additional 
negotiable  receipt  for  goods  knowing  that  a  former  negotiable  re- 
ceipt for  the  same  goods  or  any  part  of  them  is  outstanding  and  un- 
canceled, without  plainly  placing  upon  the  face  thereof  the  word 
"duplicate,"  except  in  the  case  of  a  lost  or  destroyed  receipt  after 
proceedings  as  provided  for  in  section  14,  shall  be  guilty  of  a  crime, 
and  upon  conviction  shall  be  punished  for  each  offense  by  imprison- 
ment not  exceeding  five  years,  or  by  a  fine  not  exceeding  five  thou- 
sand dollars,  or  by  both. 

Sec.  53.  Where  there  are  deposited  with  or  held  by  a  warehouse- 
man goods  of  which  he  is  owner,  either  solely  or  jointly  or  in  com- 


372  WAEEHOUSE  RECEIPTS 


mon  with  others,  such  warehouseman,  or  any  of  his  officers,  agents, 
or  servants  who,  knowing  this  ownership,  issues  or  aids  in  issuing  a 
negotiable  receipt  for  such  goods  which  does  not  state  such  owner- 
ship, shall  be  guilty  of  a  crime,  and  upon  conviction,  shall  be  pun- 
ished for  each  offense  by  imprisonment  not  exceeding  one  year,  or 
by  a  fine  not  exceeding  one  thousand  dollars,  or  by  both. 

Sec.  54.  A  warehouseman,  or  any  officer,  agent,  or  servant  of  a 
warehouseman,  knowing  that  a  negotiable  receipt  the  negotiation  of 
which  would  transfer  the  right  to  the  possession  of  such  goods  is 
outstanding  and  uncanceled,  without  obtaining  the  possession  of 
such  receipt  at  or  before  the  time  of  such  delivery,  shall,  except  in 
the  cases  provided  for  in  sections  14  and  36,  be  found  guilty  of  a 
crime,  and  upon  conviction  shall  be  punished  for  each  offense  by 
imprisonment  not  exceeding  one  year,  or  by  a  fine  not  exceeding 
one  thousand  dollars,  or  by  both. 

Sec.  55.  Any  person  who  deposits  goods  to  which  he  has  not  title, 
or  upon  which  there  is  a  lien  or  mortgage,  and  who  takes  for  such 
goods  a  negotiable  receipt  which  he  afterward  negotiates  for  value 
with  intent  to  deceive  and  without  disclosing  his  want  of  title  or  the 
existence  of  the  lien  or  mortgage  shall  be  guilty  of  a  crime,  and 
upon  conviction  shall  be  punished  for  each  offense  by  imprisonment 
not  exceeding  one  year,  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  by  both. 

Sec.  56.  In  any  case  not  provided  for  in  this  act,  the  rules  of 
law  and  equity,  including  the  law-merchant,  and  in  particular  the 
rules  relating  to  the  law  of  principal  and  agent  and  to  the  effect  of 
fraud,  misrepresentation,  duress  or  coercion,  mistake,  bankruptcy, 
or  other  invalidating  cause,  shall  govern. 

Sec.  57.  This  act  shall  be  so  interpreted  and  construed  as  to 
effectuate  its  general  purpose  to  make  uniform  the  law  of  those 
states  which  enact  it. 

Sec.  58.  (1)  In  this  act,  unless  the  context  or  subject  matter 
otherwise  requires — 

"Action"  includes  counterclaim,  setoff,  and  suit  in  equity. 

"Delivery"  means  voluntary  transfer  of  possession  from  one  per- 
son to  another. 

"Fungible  goods"  means  goods  of  which  any  unit  is,  from  its  na- 
ture or  by  mercantile  custom,  treated  as  the  equivalent  of  any  other 
unit. 


WARRANTY  373 


"Goods"  means  chattels  or  merchandise  in  storajsre,  or  which  has 
been  or  is  about  to  be  stored. 

"Holder"  of  a  receipt  means  a  person  who  has  both  actual  posses- 
sion of  such  receipt  and  a  right  of  property  in  it. 

"Order"  means  an  order  by  indorsement  on  the  receipt. 

"Owner"  does  not  include  mortgagee  or  pledgee. 

"Person"  includes  a  corporation  or  partnership  or  two  or  more 
persons  having  a  joint  or  common  interest. 

To  "purchase"  includes  to  take  as  mortgagee  or  as  pledgee. 

"Purchaser"  includes  mortgagee  and  pledgee. 

"Receipt"  means  a  warehouse  receipt. 

"Value"  is  any  consideration  sufficient  to  support  a  simple  con- 
tract. An  antecedent  or  pre-existing  obligation,  whether  for  money 
or  not,  constitutes  value  where  a  receipt  is  taken  either  in  satisfac- 
tion of  it  or  as  security  for  it. 

"Warehouseman"  means  a  person  lawfully  engaged  in  the  business 
of  storing  goods  for  profit. 

(2)  A  thing  is  done  "in  good  faith"  within  the  meaning  of  this 
act,  when  it  is  in  fact  done  honestly,  v/hether  it  be  done  negligently 
or  not. 

Sec.  50.  The  provisions  of  this  act  do  not  apply  to  receipts  made 
and  delivered  prior  to  the  taking  ofFect  of  this  act. 

Sec.  61.     This  act  may  be  cited  as  the  Warehouse  Receipts  Act. 

Warranty:  See  Sales;  Exchange;  Fraud;  Title;  Rescission;  Per- 
sonal Property;  Warehouse  Receipts;  Money;  Bill  of  Lading,  2129g; 

A  warranty  is  an  engagement  by  which  a  seller  assures  to  the  buyer 
the  existence  of  some  fact  affecting  the  transaction,  whether  past, 
present,  or  future.  Except  as  prescribed  by  this  article,  a  mere  con- 
tract of  sale,  or  agreement  to  sell,  does  not  imply  a  warranty.  One 
who  sells  or  agrees  to  sell  personal  property,  as  his  own,  thereby 
warrants  that  he  has  a  good  and  unencumbered  title  to  it;  and  if  he 
sells  or  agrees  to  sell  goods  by  sample,  he  warrants  the  bulk  to  be 
equal  to  the  sample;  or  if  he  agrees  to  sell  merchandise  not  then  in 
existence,  he  warrants  that  all  shall  be  sound  and  merchantable  at 
the  place  of  production  contemplated  by  parties,  and  at  the  place  of 
delivery,  or  as  nearly  so  as  can  be  secured  by  reasonable  care.  One 
who  sells  or  agrees  to  sell  personal  property,  knowing  that  the  buyer 
relies  upon  his  advice  or  judgment,  thereby  warrants  the  buyer  that 
neither  the  seller   (nor  any  agent  employed  by  him  in  the  transac- 


i74  WARRANTY 


tion),  knows  the  existence  of  any  fact  concerning  the  things  sold 
which  would,  to  his  knowledge  destroy  the  buyer's  inducement  to 
buy. 

If  one  sells,  or  agrees  to  sell,  an  article  of  his  own  manufacture, 
he  thereby  warrants  it  to  be  free  from  any  latent  defect,  not  dis- 
closed to  the  buyer,  arising  from  the  process  of  manufacture;  and 
also  that  neither  he  nor  his  agent  in  such  manufacture  has  knowingly 
used  improper  materials  in  it.  If  an  article  was  manufactured  under 
an  order  for  a  particular  purpose,  the  manufacture  in  selling  it, 
warrants  that  it  is  reasonably  fit  for  such  purpose.  If  one  sells,  or 
agrees  to  sell,  merchandise  inaccessible  to  the  examination  of  the 
buyer,  he  thereby  warrants  that  it  is  sound  and  merchantable.  One 
who  sells,  or  agrees  to  sell,  any  article  to  which  there  is  affixed  or 
attached  a  trade-mark,  thereby  warrants  that  mark  to  be  genuine 
and  lawfully  used.  One  who  sells,  or  agrees  to  sell,  an  instrument 
purporting  to  bind  any  one  to  the  performance  of  an  act,  thereby 
warrants  that  he  has  no  knowledge  of  any  facts  which  tend  to  prove  it 
worthless,  such  as  the  insolvency  of  any  of  the  parties  to  it  (where 
that  is  material),  the  extinction  of  its  obligations,  or  its  invalidity  for 
any  cause.  One  who  makes  a  business  of  selling  provisions  for  do- 
mestic use,  when  selling  them  to  one  who  buys  for  actual  consump- 
tion, warrants  that  they  are  sound  and  wholesome.  One  who  sells 
the  good  will  of  a  business  thereby  warrants  that  he  will  not  en- 
deavor to  draw  off  any  of  the  customers. 

Upon  a  judicial  sale,  the  only  warranty  implied  is  that  the  seller 
does  not  know  that  the  sale  will  not  pass  a  good  title  to  the  property. 
A  general  warranty  does  not  extend  to  defects  inconsistent  with  it, 
of  which  the  buyer  was  then  aware,  or  which  were  then  easily  dis- 
cernable  by  him  without  the  exercise  of  proper  skill;  but  it  extends 
to  all  other  defects. 

A  buyer  must  pay  the  price  of  the  thing  sold  on  its  delivery,  and 
must  take  it  away  within  a  reasonable  time  after  the  seller  offers 
to  deliver  it.  On  an  agreement  for  sale,  with  warranty,  the  buyer  has 
the  right  to  inspect  the  thing  sold,  at  a  reasonable  time,  before  ac- 
cepting it;  and  may  rescind  the  contract  if  the  seller  refuses  to 
permit  him  to  do  so.  See  Rescission.  The  breach  of  a  warranty 
entitles  the  buyer  to  rescind  an  agreement  for  sale,  but  not  an  exe- 
cuted sale,  unless  the  warranty  was  intended  by  the  parties  to  oper- 
ate as  a  condition.      The  following  expressions  have   been   decided 


AVATER  LAW  375 


to  be  warrantys —  "in  good  order";  1911  auto  sold  for  1912;  the 
following  are  not:  "all  right";  "30  h.  p.  engine";  "30  h.  p.  simple 
engine  traction";  "goods  first  class." 

Warranty  Deed:      See  Deeds. 

Waste:     See  Artesian  Wells;  Landlord  and  Tenant;  Real  Estate. 

Water  Law:  See  Real  Estate;  Artesian  Wells;  Waste.  This  State 
contains  so  many  conditions  of  water  supply,  that  at  first  glance  it 
would  appear  that  there  was  a  set  of  laws  for  each  variety  of  these 
conditions,  namely — appropriation,  riparian,  percolating,  tunnels, 
springs,  subterranean  waters,  water  courses  which  sink  during  the 
dry  season,  underground  streams,  underground  lakes;  btit  upon  more 
careful  examination  of  the  subject,  it  will  be  found  that  the  laws 
divide  themselves  into  three  parts;  those  in  relation  to  appropriation, 
to  riparian  rights,  and  to  all  others. 

The  standard  miner's  inch  of  water  shall  be  equivalent  to  one  and 
one-half  cubic  feet  of  water  per  minute,  measured  through  any  aper- 
ture or  orifice. 

Water  boundaries  are  as  follows  (unless  otherwise  specified  in 
the  deed):  (1)  When  bordering  on  tide  water — then  to  the 
ordinary  high  tide  mark.  This  means  the  limit  reached  by  those 
tides  which  happen  between  the  full  and  change  of  the  moon  twice 
in  every  24  hours.  The  owner  of  such  land  has  the  right  of  access 
to  the  ocean,  and  could  even  build  a  wharf  across  the  lands  of  the 
state,  preventing  a  stranger  from  doing  the  same  thing.  (2)  When 
bordering  upon  a  navigable  stream  or  lake,  where  there  is  no  tide, 
then  to  the  edge  of  it,  at  low  water  mark.  (3)  Upon  any  other 
water,  then  to  the  middle  of  the  lake  or  stream.      (See  Riparian.) 

Where  two  parcels  of  land  belonging  to  different  owners  are 
adjacent  to  each  other,  and  one  is  lower  than  the  other,  and  the 
surface  water  from  the  higher  tract  has  been  accustomed  by  a 
natural  flow  to  pass  off  over  the  lower  tract — the  owner  of  the 
upper  tract  has  an  easement  to  have  the  water  flow  over  the  land 
below — since  every  landowner  must  bear  the  burden  of  receiving 
on  his  land  the  surface  water  naturally  falling  upon  land  above  it,. 
and  naturally  flowing  from  it  on  to  the  lower  land.  The  owner  of 
the  higher  land  has  no  right  (even  for  his  own  relief)  either  to 
divert  surface  or  storm  waters  from  his  lands  on  to  the  lands  of 
another — over  which  they  would  not  naturally  have  flowed;  nor  has 
he   the   right   by   accumulating   the    surface  waters   upon   his   own 


376  WATER  LAW 


lands  (in  ditches  or  other  artificial  channels)  to  precipitate  them 
apon  his  neij2:hbor's  land  in  larprer  quantities,  or  in  a  different 
form  from  that  -which  they  would  have  taken  in  the  course  of 
nature. 

APPROPRIATION:  All  water  or  the  use  of  water  within  the 
State  of  California  is  the  property  of  the  people  of  the  State  of 
California,  but  the  right  to  the  use  of  running  water  flowing  in  a 
river  or  stream  or  down  a  canyon  or  ravine  may  be  acquired  by  ap- 
propriation; provided,  that  no  water  for  the  generation  of  electricity 
or  electrical  or  other  power  may  be  appropriated  for  a  longer  period 
than  twenty-five  years,  except  by  a  municipal  corporation,  other 
than  an  irrigation  district  or  a  lighting  district,  or  by  an  irrigation 
district  when  such  electricity,  electrical  or  other  power  is  for  use 
and  distribution  only  within  its  own  limits,  and  as  subsidiarj-  to  and 
mainly  for  the  puirpose  of  serving  and  carrying  out  irrigation,  or 
by  a  lighting  district  when  such  electricity,  electrical  or  other  power 
is  for  use  and  distribution  only  within  its  own  limits.  The  appro- 
priation must  be  for  some  useful  or  beneficial  purpose  and  when  the 
approprJator  or  his  successor  in  interest  ceases  to  use  it  for  such 
purposes,  the  right  ceases.  The  person  entitled  to  the  use  may 
change  the  place  of  diversion  if  others  are  not  injured  by  the  change, 
and  may  extend  the  ditch,  flume,  pipe,  or  acqueduct  by  which  the 
diversion  is  made  to  places  beyond  that  where  the  first  use  was  made. 
The  water  appropriated  may  be  turned  into  the  channel  of  another 
stream  and  mingled  with  its  water,  and  then  reclaimed;  but  in  re- 
claiming it  the  water  already  appropriated  by  another  must  not  be 
diminished.  As  betw^een  appropriators,  the  one  first  in  time  is  the 
first  in  right,  but  he  may  take  only  that  quantity  necessary  for  use 
on  his  own  lands.  An  appropriator's  right  is  limited  to  such  quan- 
tity (not  exceeding  the  capacity  of  the  ditch),  as  he  may  put  to  a 
useful  purpose  upon  his  land  within  a  reasonable  time,  by  use  of 
reasonable  diligence.  He  cannot  waste.  If  there  is  any  surplus  over 
and  above  the  water  necessary  for  his  beneficial  use,  he  must  restore 
it  to  its  accustomed  flow  in  the  stream. 

APPROPRIATION  BY  STORAGE. 

Section  1.  The  storing  of  water  underground  by  the  owner  of 
the  right  to  the  use  of  it,  and  the  damming  of  streams  and  the 
flowing  of  water  on  lands  necessary  to  the  accomplishment  of  such 
storage,  if  the  water  is  to  be  later  withdrawn  by  pumps,  tunnels,  or 


WATER  LAW 


other  suitable  means  for  irrigation,  domestic  or  other  beneficial  usce 
within  the  territory  served  by  the  owners  of  the  water  right,  with 
water  for  irrigation,  domestic  or  other  beneficial  uses  are  hereby 
declared  to  be  reasonable,  economic,  and  beneficial  methods  of  taking 
and  applying  such  water,  if  the  water  so  taken  is  from  time  to  time 
being  put  to  the  beneficial  uses  for  which  it  was  appropriated. 

Sec.  3.  None  of  the  provisions  hereof  shall  apply  to  the  use  of 
artesian  well  water  or  affect  riparian  rights  in  any  way. 

RIPARIAN:  One  who  owns  land  which  borders  a  running  stream 
is  called  a  riparian  owner,  and  his  rights  in  the  waters  of  the  stream 
are  said  to  be  "riparian"  rights.  He  is  entitled  to  the  land  covered 
with  water,  in  front  of  his  bank  to  the  center  of  the  v/atercourse, 
and  to  the  use  of  the  water  flowing  over  that  land  in  its  natural 
current,  without  diminution  or  obstruction.  This  watercourse  need 
not  flow  constantly  but  should  be  expected  at  some  season  of  the  year: 
it  must  have  a  source  independent  of  that  fitful  and  occasional 
character  which  comes  from  melting  snow  or  falling  rain;  it  must  be 
a  stream  flowing  in  a  definite  channel,  with  a  bed  and  banks  or  sides 
and  may  be  partly  above  the  surface  and  partly  beneath,  or  some 
times  above  and  some  times  below.  As  long  as  running  water  con- 
tinues in  its  natural  course  it  cannot  be  made  subject  to  private  own- 
ership. 

The  riparian  owner  does  not  own  the  water.  He  has  the 
right  to  use  the  water  in  a  reasonable  quantity  for  domestic  and 
irrigation  purposes,  and  must  return  the  surplus  to  the  stream  within 
the  boundary  of  his  land,  that  it  may  pass  on  to  a  lower  riparian 
owner.  He  has  the  right  to  insist  that  this  water  shall  not  be  pol- 
luted before  it  reaches  his  land,  nor  diminished  from  use  by  other 
riparian  owners — so  as  to  deprive  him  of  his  just  portion.  If  the 
needs  of  a  riparian  owner  do  not  prompt  him  to  make  use  of  the 
water,  he  still  has  the  right  to  have  them  flow  onto  and  along,  and 
over,  lands  in  the  usual  way — except  as  may  be  changed  by  act  of 
God,  or  as  the  amount  of  it  may  be  decreased  by  the  reasonableness 
of  upper  riparian  owners.  But  none  of  his  rights  to  put  the  water  to 
legitimate  use  are  lost  because  he  does  not  use  them.  These  rights 
are  attached  to  the  soil  and  pass  with  it,  and  may  be  lost  only  by 
grant,  condemnation  or  proscription. 

Lands  situated  beyond  the  natural  watershed  of  a  stream,  which  are 
not  drained  by  it — cannot  be  considered  as  riparian,  even  though  they 


378  WATER  LAW 


form  part  of  a  tract  owned  in  one  body;  and  such  owner,  under  his 
riparian  claim — and  to  the  injury  of  another  riparian  owner — cannot 
take  the  waters  beyond  its  natural  watershed,  for  any  purpose;  even 
for  manufacturing,  when  it  would  practically  return.  An  upper 
riparian  owner  is  limited  in  his  right  to  the  use  of  water  upon  his  land 
within  the  watershed  of  the  stream.  He  may  take  his  proportion  of 
the  water.  The  surplus  must  be  returned  to  the  channel  of  the  river 
at  the  lower  boundary  of  his  land.  After  he  has  thus  used  his  legit- 
imate part  of  the  water,  he  cannot  object  to  its  diversion  to  any 
beneficial  use  by  a  lower  riparian  owner,  or  their  successors — even 
though  they  might  take  it  out  of  the  watershed. 

The  right  to  take  water,  as  against  a  riparian  owner,  may  be  ac- 
quired by  proscription,  but  lower  riparian  owners  using  their  water 
cannot  acquire  title  to  them  by  proscription  against  upper  riparian 
owners  on  the  same  stream  who  do  not  use  the  water.  There  can 
be  no  prescriptive  right  to  divert  the  waters  of  a  stream,  as  against 
an  upper  riparian  owner,  at  a  point  below  his  land — by  reason  of 
his  long  acquiescence  in  such  diversion  and  use.  There  can  be  no 
title  by  proscription  where  the  acts  making  the  adverse  claim  of  use 
are  not  sufficient.  A  riparian  right  is  not  destroyed  by  the  acquisi- 
tion of  an  easement  for  a  highway,  canal,  or  road  along  the  shore. 

In  all  actions  which  may  be  hereafter  brought  when  an  injunction 
or  restraining  order  may  be  applied  for  to  prevent  the  diversion, 
diminution  or  increase  of  the  flow  of  water  in  its  natural  channels, 
to  the  ordinary  flow  of  which  the  plaintiff  claims  to  be  entitled,  the 
court  shall  first  require  due  notice  of  the  application  to  be  served 
upon  the  defendant,  unless  it  shall  appear  from  the  verified  com- 
plaint or  affidavits  upon  which  the  application  therefor  is  made,  that, 
within  ten  days  before  the  time  of  such  application,  the  plaintiff  has 
been  in  the  peaceable  possession  of  the  flow  of  such  water,  and  that, 
within  such  time,  said  plaintiff  has  been  deprived  of  the  flow  of  it 
by  the  wrongful  diversion  of  such  flow  by  the  defendant,  or  that  the 
plaintiff,  at  the  time  of  such  application,  is,  and  for  ten  days  before 
has  been,  in  possession  of  the  flow  of  said  water,  and  that  the  de- 
fendant threatens  to  divert  the  flow  of  such  water. 

PERCOLATING  WATERS:  The  doctrine  that  the  owner  of  the 
soil  was  the  absolute  owner  of  the  water  percolating  in  it,  and  could 
extract  the  waters  at  will,  regardless  of  its  effect  on  other  lands — 
is  unsuited  to  our  conditions.     Outside  of  underground  waters  con- 


WATER  LAW  379 


tained  in  ancient  canyons,  or  lake  basins,  there  is  no  percolating 
waters  in  this  State  sufficient  to  be  of  much  importance;  riparian 
rights  cannot  attach  to  such  a  body,  nor  is  it  governed  by  laws  per- 
taining to  running  streams.  There  is  no  distinction  between  a 
stream  gathered  together  by  means  of  a  tunnel,  and  one  gathered 
by  an  artesian  well.  When  two  or  more  persons  own  different  tracts 
of  land,  underlaid  by  porous  material  extending  to  and  communicat- 
ing with  th^m  all — which  is  saturated  with  water  moving  with  more 
or  less  freedom  in  it — each  has  a  common  and  correlative  right  to 
the  use  of  this  water  upon  his  own  land,  to  the  full  extent  of  his 
needs  (if  the  common  supply  is  sufficient),  and  to  the  extent  of  a 
reasonable  share  of  it,  if  the  supply  is  so  scant  that  the  use  by  one 
will  affect  the  supply  of  the  other.  Neither  one  may  divert  any  of 
the  water  beyond  the  water  shed,  for  commercial  purposes.  If  this 
underground  stream  of  water  is  supplied  by  the  flood  waters  of  a 
stream,  the  owner  has  a  primary  right  to  the  full  flow  of  such  waters, 
in  order  to  bring  his  stratum  up  to  its  water  bearing  capacity. 

Subterranean  water  is  presumed  to  be  percolating  and  one  who 
claims  th-e  right  in  it  as  a  flowing  stream — must  prove  that  fact. 
The  relative  rights  of  the  owner  of  a  nonriparian  land  containing  per- 
colating waters  which  feed  a  surface  stream,  are  the  same  as  that 
of  a  riparian  owner;  for  the  principle  is  the  same,  and  these  per- 
colating waters  and  the  stream  fed  by  them,  constitute  a  common 
source  of  supply.  When  there  is  a  well-defined  subsurface  flow  with- 
in the  bed  and  banks  of  a  stream — the  subterranean  waters  are  to 
be  regarded  as  but  a  valuable  portion  of  the  surface  stream  so  far  as 
riparian  rights  and  privileges  of  appropriation  are  concerned.  If 
there  is  an  underground  water  course,  well  defined,  within  definite 
boundaries,  the  riparian  rules  will  apply,  otherwise  these  under- 
ground waters  will  usually  be  considered  under  the  general  defini- 
tions of  percolating  waters. 

If  the  water  is  supplied  upon  land,  for  its  benefit  (as  for  irriga- 
tion), the  right  to  receive  and  use  ft  becomes  in  the  nature  of  an 
appurtenance  to  land.  If  it  is  supplied  for  personal  use  to  all  per- 
sons within  certain  territory,  or  to  all  of  a  certain  class  within  such 
territory  (as  for  domestic  use),  the  right  of  its  use  is  personal  to 
the  inhabitants  of  that  territory — or  to  the  members  of  that  class — 
as  long  as  they  remain  such.  In  either  case  the  right  may  be  en- 
forced against  the  person  in   control  of  the  supply  ,and  the  works 


380  WATER  LAW 


by  Avhich  it  is  distributed  (regardless  of  tbe  title  to  the  water),  by 
means  of  an  action  in  mandamus  to  compel  a  continuance  of  the 
distribution,  in  the  usual  and  proper  manner  of  those  entitled.  A 
license  to  use  a  water  ditch  is  an  easement;  but  it  is  not  an  estate  in 
land,  if  it  is  revocable.  If  the  o\vner  of  a  piece  of  land  which  has  a 
water  supply,  sells  a  portion  of  that  land  to  which  water  had  been 
ditched,  he  also  conveys  an  implied  right  for  continuous  use  in  the 
water  supply.  If  tlie  right  of  way  for  an  irrigation  ditch  has  been 
given  across  certain  lands  in  a  definite  direction  and  place,  it  cannot 
be  changed  without  consent  of  the  owner  of  the  land,  and  if  it  were 
a  perpetual  right,  it  would  constitute  a  cloud  on  the  title. 

If  crops  are  destroyed  (as  for  lack  of  water),  the  measure  of 
damages  is  their  value  in  their  condition  at  the  time  and  place  of 
destruction.  To  determine  this,  one  may  determine  the  probable 
yield  and  market  value,  and  deduct  the  cost  of  producing  and  market- 
ing and  value  of  the  landlord's  share.  The  measure  of  damages  for 
breach  of  contract  to  furnish  water  for  irrigation  is  the  market  value 
of  the  crop  at  the  selling  place,  less  the  expenses  incurred  in 
growing  and  marketing  the  crop.  Measure  of  damages  where  there  is 
a  total  failure  to  deliver  water  contracted  for,  is  the  difference  be- 
tween the  rental  value  of  the  land  with  water,  and  its  value  without 
water,  and  deducting  the  lawful  price  of  the  water. 

WATER  CORPORATIONS:  No  corporation  formed  to  supply  any 
city,  city  and  county,  or  town  with  water  must  do  so  unless  previ- 
ously authorized  by  an  ordinance  of  the  authorities  of  it,  or  unless 
it  is  done  in  conformity  with  a  contract  entered  into  between  the 
city,  city  and  county,  or  town  and  the  corporation.  Contracts  so 
made  are  valid  and  binding  in  law,  but  do  not  take  from  the  city, 
city  or  county,  or  town  the  right  to  regulate  the  rates  for  water,  nor 
must  be  made  for  a  term  exceeding  fifty  years.  All  corporations 
formed  to  supply  water  to  cities  or  towns  must  furnish  pure  fresh 
water  to  the  inhabitants  of  it,  for  family  uses,  so  long  as  the  sup- 
ply permits,  at  reasonable  rates  and  without  distinction  of  persons 
upon  proper  demand  for  it,  and  must  furnish  water  to  the  extent  of 
their  means,  in  case  of  fire  or  other  great  necessity,  free  of  charge. 
The  board  of  supervisors,  or  the  proper  city  or  town  authorities, 
may  prescribe  proper  rules  relating  to  the  delivery  of  water,  not 
inconsistent  with  the  laws  of  the  state. 

Any  corporation  organized  for  or  engaged  in  the  business  of  sell- 


WATER  LAW  381 


ing,  distributing,  supplying  or  delivering  water  for  irrigation  purposes 
or  for  domestic  use,  may  provide  in  its  laws  that  water  shall  only 
be  so  used,  distributed,  sold,  supplied  or  delivered  to  owners  of  its 
capital  stock,  and  that  such  stock  shall  be  issued  appurtenant  to  cer- 
tain lands — when  the  lands  are  described  in  the  certificate  issued  for 
the  shares  of  stock;  and  when  such  certificate  is  so  issued  and  a 
copy  of  the  bylaws  recorded  in  the  office  of  the  county  recorder  of 
the  county  in  which  such  lands  are  situated,  these  shares  of  stock 
shall  only  be  transferred  with  said  lands,  and  shall  pass  as  an  appur- 
tenance to  them.  Where  a  water  company  is  engaged  in  the  distribu- 
tion of  water  for  public  use,  it  probably  cannot  be  permitted  to  dis- 
continue, except  it  is  not  in  a  financial  responsibility  to  continue. 

When  any  corporation,  organized  under  the  laws  of  this  state, 
furnishes  water  to  irrigate  lands  which  such  corporation  has  sold, 
the  right  to  the  flow  and  use  of  said  water  shall  remain  a  perpetual 
easement  to  the  land  so  sold,  at  such  rate  and  terms  as  may  be  es- 
tablished by  such  corporation  in  pursuance  of  law.  And  whenever 
any  person  who  is  cultivating  land  on  the  line  and  within  the  flow 
of  any  ditch  owned  by  such  corporation,  has  been  furnished  water 
by  it  with  v/hich  to  irrigate  such  land — such  person  shall  be  entitled 
to  the  continued  use  of  said  water,  upon  the  same  terms  as  those 
who  purchased  their  lands  of  the  corporation. 

MUTUAL  WATER  COMPANY:  A  stockholder  may  enjoin  an 
increase  of  stock,  and  an  issue  to  new  stockholders,  and  a  proposal 
to  supply  more  land  with  water — when  the  water  system  is  already 
carrying  all  the  land  it  can.  The  rights  of  a  stockholder  to  have 
water  furnished  upon  his  land  is  an  inseparable  adjunct  of  his  mem- 
bership. In  the  absence  of  a  provision  to  the  contraiy,  either  in 
the  certificate  of  stock,  or  resolution,  by-law — or  other  writing — the 
.stockholders  are  to  be  regarded  as  equal  in  right.  He  may  enforce 
his  privilege,  by  writ  of  mandamus — even  though  he  has  not  actual 
title  to  the  land,  but  has  crops  upon  it. 

An  agreement  to  "deliver  an  amount  of  water  equal  to 
irrigating  each  seven  acres"  of  a  twenty-acre  tract,  means 
that  water  may  be  accumulated  for  30  days  and  used  during  an 
entire  24  hours,  instead  of  delivery  in  a  continuous  flow  during  the 
entire  30  days.  If  one  party  to  a  contract  breaks  it  (such  as  pay- 
ment for  water  at  times  and  price  agreed  upon)  this  does  not  permit 
the  other  party  to  break  it  also   (such  as  a  water  company  wh<5  re- 


382  WILLS 


fused  to  deliver  any  more  water  because  former  bills  had  not  been 
paid).  (This  probably  is  not  the  rule  in  some  cities,  where  ordi- 
nance has  made  a  different  law.)  If  it  was  agreed  that  the  consumer 
"might  elect  to  cumulate  the  use  of  water  (of  a  specified  number  of 
inches  during  certain  months),  at  any  one  month  or  more";  this 
would  entitle  him  to  accumulate  only  at  periods  of  one  month  or 
more — he  could  not  have  water  tAvice  a  month.  A  two-thirds  vote 
of  the  stockholders  is  necessary  to  divide  up  its  water  rights. 

When  two  or  more  persons  are  associated  by  agreement  in  the  use 
of  a  ditch,  flume,  pipe  line  or  other  conduit,  for  the  conveyance  of 
water,  or  who  are  using  such  or  any  part  of  it,  for  the  irrigation 
of  land,  or  for  any  other  lawful  purpose,  to  the  construction  of  which 
they,  or  their  grantors,  have  contributed,  each  is  liable  to  the  others, 
for  the  reasonable  expenses  of  maintaining  and  repairing  it,  and 
of  distributing  such  water,  in  proportion  to  the  share  to  v/hich  he  is 
entitled  in  the  use  of  the  water;  and  if  one  neglects,  after  demand 
in  writing,  to  pay  his  proportion  of  such  expense,  he  is  liable  there- 
fore in  an  action  for  contribution,  and  in  any  judgment  against  him, 
counsel  fees,  as  well  as  any  interest  from  the  time  of  such  demand, 
must  be  included.  Contracts  to  deliver  water  may  be  held  to  be  liens 
upon  the  land;  and  may  be  foreclosed. 

Weighmaster:      See  Public  Weighmaster. 

Weight*  and  Measures:  See  Warehouseman;  Net  Container  Law. 
All  weights  and  measures  used  by  any  person  in  this  State  must  be 
standard  to  those  received  from  the  United  Stater,  under  act  of 
Congress  June  14,  1836,  and  other  which  from  time  to  time  may  be 
sent  from  the  United  States.  Each  city  and  county  shall  have  a 
sealer  of  weights  and  measures,  whose  duty  it  is  to  examine  all 
v/eights  and  measures  used,  made  or  sold  by  any  one  in  the  state, 
and  to  condemn  or  destroy  those  which  he  finds  are  not  precise. 

Wharfinger:     See  Warehouseman. 

Wills:  See  Succession;  Gifts,  (under  Personal  Property);  Escheat. 

Every  person  over  the  age  of  eighteen  years,  of  sound  mind,  may, 
by  last  will,  dispose  of  all  his  estate,  real  and  personal,  and  such 
estate  not  disposed  of  by  will  is  succeeded  to  as  provided  under 
Succession,  being  chargeable  in  both  cases  with  the  payment  of  all 
the  decedent's  debts. 

Either  husband  or  wife  may,  by  will,  dispose  of  his  or  her  half 


WILLS  383 


of  the  community  property  by  and  with  the  consent  of  the  other, 
which  consent  must  be  in  writing  upon  or  attached  to  the  will;  but 
either  spouse  may,  without  the  consent  of  the  other,  make  such 
testamentary  disposition  in  favor  of  the  other  spouse  or  of  the  lineal 
descendants  of  the  estator.    (Enacted,  Stats.  1919.) 

[Note — The  above  section  was  delayed  from  going  into  eflfect  by  referendum 
provisions  of  section  1,  Article  IV,  of  the  state  constitution,  and  will  be  voted 
upon  by  the  people  at  the  next  general  election  in  November,  1920,  or  at  any 
special  election  which  may  be  called  by  the  Governor,  in  his  discretion,  prior  to 
such    regular   election.] 

A  will,  or  part  of  a  will,  procured  to  be  made  by  duress,  menace, 
fraud,  or  undue  influence,  may  be  denied  probate;  and  a  revocation, 
procured  by  the  same  means,  may  be  declared  void. 

A  married  woman  may  dispose  of  all  her  separate  estate  by  will, 
without  the  consent  of  her  husband,  and  may  alter  or  revoke  the 
will  in  like  manner  as  if  she  were  single.  Her  will  must  be  exe- 
cuted and  proved  in  like  manner  as  other  wills. 

Every  estate  and  interest  in  real  or  personal  property,  to  which 
heirs,  husband,  widow,  or  next  of  kin  might  succeed,  may  be  dis- 
posed of  by  will,  except  as  otherwise  provided. 

A  testamentary  disposition  may  be  made  to  any  person  capable 
by  law  of  taking  the  property  so  disposed  of,  except  that  corpora- 
tioTTS  other  than  counties,  municipal  corporations,  and  corporations 
formed  for  scientific,  literary,  or  solely  educational  or  hospital  pur- 
poses, cannot  take  under  a  will,  unless  expressly  authorized  by 
statute. 

Every  will,  other  than  a  nuncupative  will,  must  be  in  writing; 
and  every  will,  other  than  an  olographic  will,  and  noncupative  will, 
must  be  executed  and  attested  as  follows:  (1)  It  must  be  sub- 
scribed at  the  end  thereof  by  the  testator  himself,  or  some  person 
in  his  presence  and  by  his  direction  must  subscribe  his  name  to  it; 
(2)  The  subscription  must  be  made  in  the  presence  of  the  attesting 
witnesses,  or  be  acknowledged  by  the  testator  himself,  or  some  person 
made  by  him  or  by  his  authority;  (3)  The  testator  must,  at  the 
time  of  subscribing  or  acknowledging  the  same,  declare  to  the  at- 
testing witnesses  that  the  instrument  is  his  will;  and,  (4)  There 
must  be  two  attesting  witnesses,  each  of  whom  must  sign  the  same 
as  a  witness,  at  the  end  of  the  will,  at  the  testator's  request  and  in 
his  presence.     (See  Signature.) 

AN  HOLOGRAPHIC  WILL:  An  [h] olographic  will  is  one  that 
is  entirely  written,  dated,  and  signed  by  the  hand  of  the  testator 


aSi  WILLS 


himself.     It  is  subject  to  no  other  form,  and  may  be  made  in  or  out 

of  this  state,  and  need  not  be  witnessed. 

WITNESS: 

A  witness  to  a  written  will  must  write,  with  his  name,  his  place 
of  residence;  and  a  person  who  subscribes  the  testator's  name,  by 
his  direction,  must  write  his  own  name  as  a  witness  to  the  will. 
But  a  violation  of  this  section  does  not  affect  the  validity  of  the 
will. 

If  the  subscribing  witnesses  to  a  will  are  competent  at  the  time 
of  attesting  its  execution,  their  subsequent  incompetency,  from 
whatever  cause  it  may  arise,  does  not  prevent  the  probate  and  al- 
lowance of  the  will,  if  it  is  otherwise  satisfactorily  proved. 

All  beneficial  devises,  legacies,  and  gifts  whatever,  made  or  given 
in  any  Avill  to  a  subscribing  witness  to  it,  are  void,  unless  there  are 
two  other  competent  subscribing  witnesses  to  the  same;  but  a  mere 
charge  on  the  estate  of  the  testator  for  the  payment  of  debts  does 
not  prevent  his  creditors  from  being  competent  witnesses  to  his  will. 

If  a  witness,  to  whom  any  beneficial  devise,  legacy,  or  gift,  void 
by  the  preceding  section,  is  made,  would  have  been  entitled  to  any 
share  of  the  estate  of  the  testator,  in  case  the  will  should  not  be 
established,  he  succeeds  to  so  much  of  the  share  as  would  be  dis- 
tributed to  him,  not  exceeding  the  devise  or  bequest  made  to  him  in 
the  will,  and  he  may  recover  the  same  of  the  other  devisees  or 
legatees  named  in  the  will,  in  proportion  to  and  out  of  the  parts 
devised  or  bequeathed  to  them. 
REVOCATION: 

Except  in  the  cases  in  this  chapter  mentioned,  no  written  will, 
nor   any   part    of    it,    can    be    revoked    or    altered    otherwise    than: 

1.  By  a  written  will,  or  other  writing  of  the  testator,  declaring 
such  revocation  or  alteration,  and  executed  with  the  same  formal- 
ities with  which   a   will   should   be   executed   by   such   testator;   or, 

2.  By  being  burnt,  torn,  canceled,  obliterated,  or  destroyed,  with 
the  intent  and  for  the  purpose  of  revoking  the  same,  by  the  testator 
himself,  or  by  some  person  in  his  presence  and  by  his  direction. 

When  a  will  is  canceled  or  destroyed  by  any  other  person  than 
the  testator,  the  direction  of  the  testator  and  the  fact  of  such  injury 
or  destruction,  must  be  proved  by  two  witnesses. 

The  revocation  of  a  will,  executed  in  duplicate,  may  be  made 
by  revoking  one  of  the  duplicates. 


WILLS  385 


A  prior  will  is  not  revoked  by  a  sabsequcnt  will,  unless  the  latter 
contains  an  express  revocation,  or  provisions  wholly  inconsistent 
with  the  terms  of  the  former  will;  but  in  other  cases  the  prior  will 
remains  effectual  so  far  as  consistent  with  the  provisions  of  the 
subsequent  will. 

If,  after  making  a  will,  the  testator  duly  makes  and  executes  a 
second  will,  the  destruction,  cancellation,  or  revocation  of  such 
second  will  does  not  revive  the  first  will,  unless  it  appears  by  the 
terms  of  such  revocation  that  it  was  the  intention  to  revive  and 
give  effect  to  the  first  will,  or  unless  after  such  destruction,  can- 
cellation, or  revocation,  the  first  will  is  duly  republished. 

If,  after  having  made  a  will,  the  testator  marries,  and  has  issue 
of  such  marriage,  bom  either  in  his  lifetime  or  after  his  death,  and 
the  wife  or  issue  survives  him,  the  will  is  revoked,  unless  (1)  pro- 
vision has  been  made  for  such  issue  by  some  settlement,  or  (2) 
unless  such  issue  are  provided  for  in  the  will,  or  (3)  in  such  way 
mentioned  therein  as  to  show  an  intention  not  to  make  such  pro- 
vision; and  no  other  evidence  to  rebut  th*^  presumption  of  such 
revocation  can  be  received. 

If,  after  making  a  will,  the  testator  marries,  and  the  wife  sui*- 
vives  the  testator,  the  will  is  revoked,  unless  (1)  provision  has 
been  made  for  her  by  marriage  contract,  or  (2)  unless  she  is  pro- 
vided for  in  the  will,  or  (3)  in  such  way  mentioned  therein  as  to 
show  an  intention  not  to  make  such  provision;  and  no  other  evi- 
dence to  rebut  the  presumption  of  revocation  must  be  received. 

If,  after  making  a  will,  the  testratrix  mairies,  and  the  husband 
surives  the  testatrix,  the  will  is  revoked,  unless  provision  hag  been 
made  for  him  by  marriage  contract,  or  unless  he  is  provided  for  in 
the  will,  or  in  such  way  mentioned  therein  as  to  show  an  intention 
not  to  make  such  provision;  and  no  other  evidence  to  rebut  the 
presumption  of  revocation  can  be  received. 

If,  after  making  a  will,  the  testatrix  marries,  and  has  issue  of 
said  marriage,  bom  either  in  her  life  time  or  aftei-  hev  death, 
and  the  husband  or  issue  siirvives  her,  the  will  is  revoked,  unless 
provision  has  been  made  for  such  issue  by  some  settlement,  or  un- 
less such  issue  are  provided  for  in  the  will,  oi-  in  such  way  men- 
tioned therein  as  to  show  an  intention  not  to  make  such  provisioii; 
and  no  other  evidence  to  rebut  the  presumption  of  such  revocation 
can  be  received. 


586  WILLS 


REVOCATION  OF  CODICILS:     The  revocation  of  a  will  revokes 

all  its  codicils. 

MUTUAL  WILL:  A  conjoint  or  mutual  will  is  valid,  but  it  may 
be  revoked  by  any  of  the  testators,  in  like  manner  with  any  other 
will. 

CONDITIONAL  WILL:  A  will,  the  validity  of  which  is  made  by 
its  own  terms  conditional,  may  be  denied  probate,  according  to  the 
event,  with  reference  to  the  condition. 

CHILDREN:  A  child  conceived  before,  but  not  born  until  after 
a  testator's  death,  or  any  other  period  when  a  disposition  to  a  class 
vests  in  right  or  in  possession,  takes,  if  answering  to  the  description 
of  the  class. 

Whenever  a  testator  has  a  child  born  after  the  making  of  bis 
will,  either  in  his  lifetime  or  after  his  death,  and  dies  leaving  such 
child  unprovided  for  by  any  settlement,  and  neither  provided  for 
nor  in  any  way  mentioned  in  his  will,  the  child  succeeds  to  the 
same  portion  of  the  testator's  real  and  personal  property  that  he 
would  have  succeeded  to  if  the  testator  had  died  intestate.  But 
such  succession  does  not  impair  or  affect  the  validity  of  any  sale 
of  property  made  by  authority  of  such  will. 

When  any  testator  omits  to  provide  in  his  will  (1)  for  any  of 
his  children,  or  (2)  for  the  issue  of  any  deceased  child,  unless  it 
appears  that  such  omission  was  intentional,  such  child,  or  the  issue 
of  such  child,  has  the  same  share  in  the  estate  of  the  testator  as  if 
he  had  died  intestate,  and  succeeds  thereto  as  provided  in  the  pre- 
ceding section.  But  such  succession  does  not  impair  or  affect  the 
validity   of  any  sale   of  property  made   by  authority   of   such  wilL 

When  any  share  of  the  estate  of  a  testator  is  assigned  to  a  child 
bom  after  the  making  of  a  will,  or  to  a  child,  or  the  issue  of  a 
child,  omitted  in  th€  will,  as  hereinbefore  mentioned,  the  same  must 
first  be  taken  from  the  estate  not  disposed  of  by  the  will,  if  any;  if 
that  is  not  sufficient  so  much  as  may  be  necessary  must  be  taken 
from  all  the  devisees  or  legatees,  in  proportion  to  the  value  they 
may  respectively  receive  under  the  will,  unless  the  obvious  inten- 
tion of  the  testator  in  relation  to  some  specific  devise  or  bequest, 
or  other  provision  in  the  will,  would  thereby  be  defeated;  in  such 
case,  such  specific  devise,  legacy,  or  provision  may  be  exempted 
from  such  apportionment,  and  a  different  apportionment,  consistent 
with  the  intention  of  the  testator,  may  be  adopted. 


WILLS  387 


FOREIGN  WILL:  No  will  made  out  of  this  state  is  valid  as  a  will  in 
this  state,  unless  executed  according  to  th*  provisions  of  this  chapter, 
except  that  a  will  made  in  a  state  «r  country  in  which  the  testator  is 
domiciled  at  the  time  of  his  death,  and  valid  as  a  will  under  the 
laws  of  said  state  or  country,  is  valid  in  this  state  so  far  as  the 
same  relates  to  personal  property. 

CHARITIES:  No  estate,  real  or  personal,  shall  be  bequeathed  or  de- 
vised to  any  charitable  or  benevolent  society  or  corporation,  or  to  any 
person  or  persons  in  trust  for  charitable  uses,  except  the  same  be  done 
by  will  duly  executed  at  least  thirty  days  before  the  decease  of 
the  testator;  and  if  so  made  at  least  thirty  days  prior  to  such  death, 
such  devise  or  legacy  and  each  of  them  shall  be  valid;  provided, 
that  no  such  devise  or  bequest  shall  collectively  exceed  one-third  of 
the  estate  of  the  testator,  leaving  legal  heirs,  and  in  such  case  a 
pro  rata  deduction  from  such  devises  or  bequests  shall  be  made  so 
as  to  reduce  the  aggregate  thereof  to  one-third  of  such  estate;  and 
all  dispositions  of  property  made  contrary  to  this  section  shall  be 
void,  and  go  to  the  residuary  legatee  or  devisee,  next  of  kin,  or 
heirs,  according  to  law;  and  provided,  further,  that  bequests  and 
devises  to  the  state,  or  to  any  state  institution,  or  for  the  use  or 
benefit  of  the  state  or  any  state  institutien,  are  exempted  from  the 
restrictions  of  this  section. 

The  execution  of  a  codicil,  referring  to  a  previous  will,  has  the 
effect  to  republish  the  will,  as  modified  by  the  codicil. 

NONCUPATIVE  WILL:  A  noncupative  will  is  not  required  to  be 
in  writing,  nor  to  be  declared  or  attested  with  any  formalities. 

To  make  a  nuncupative  will  valid,  and  to  entitle  it  to  be  ad- 
mitted to   probate,   the   following  requisites  must  be   observed: 

1.  The  estate  bequeathed  must  not  exceed  in  value  the  sum  of 
one  thousand  dollars. 

2.  It  must  be  proved  by  two  witnesses  who  were  present  at  the 
making  thereof,  one  of  whom  was  asked  by  the  testator,  at  the 
time,  to  bear  witness  that  such  was  his  will,  or  to   that  effect. 

3.  The  decedent  must,  at  the  time,  have  been  in  actual  military 
service  in  the  field,  or  doing  duty  on  shipboard  at  sea,  and  in 
either  case  in  actual  contemplation,  fear,  or  peril  of  death,  or  the 
decedent  must  have  been,  at  the  time,  in  expectation  of  immediate 
death  from  an  injury  received  the  same  day. 

No  proof  must  be  received  of  any  nuncupative  will,  unless  it  is 


888  WRECKS 


offered  within  six  months  after  speaking  the  testamentary  words, 
nor  unless  the  words,  or  the  substance  thereof,  were  reduced  to 
writing  within  thirty  days  after  they  were  spken. 

No  probate  of  any  nuncupative  will  must  be  granted  for  four- 
teen days  after  the  death  of  the  testator,  nor  must  any  nuncupative 
will  be  at  any  time  proved,  unless  the  testamentary  words,  or  the 
substance  thereof,  be  first  committed  to  writing,  and  process  issued 
to  call  in  the  widow,  or  other  persons  interested,  to  contest  the 
probate  of  such  will,  if  they  think  proper. 

Wines:     See  Transfer. 

Without  Recourse:      See  Negotiable  Instruments. 

Workmen's  Compensation  Law  gives  to  the  injured  working  man 
a  percentage  of  his  salary  (usually  65  per  cent)  with  doctors  and 
hospital  services  paid  also,  if  he  receives  any  injury  during  the  course 
of  his  employment  which  causes  him  to  be  out  of  work  for  more  than 
two  weeks. 

If  he  is  not  paid  at  once,  he  files  a  claim  with  the  Industrial  Ac- 
cident Commission  (provided  he  has  notified  his  employer  of  the 
accident  within  thirty  days  after  it  happened,  or  provided  his  em- 
ployer or  his  agent  knew  of  the  accident — in  case  such  notice  was 
not  given). 

At  the  hearing  he  may  be  represented  by  a  lawyer,  or  not,  as  he 
prefers. 

The  employer  has  no  excuse,  or  defense,  unless  the  employee  was 
grossly  negligent  himself — such  as  being  drunk,  or  doing  some- 
thing or  being  in  some  place  which  had  been  forbidden  him. 

The  employer  cannot  be  sued  in  the  State  courts,  unless  he  was 
wilfully  careless,  and  to  determine  this,  there  is  no  precise  rule,  but 
each  case  must  be  decided  for  itself. 

Wrecks:  See  also  Ships;  Liens;  Carriers.  The  sheriff  in  each 
county  must  give  all  possible  aid  and  assistance  to  vessels  stranded 
on  its  coast,  and  to  the  persons  on  board  the  same,  and  exert  him- 
self to  save  and  preserve  such  persons,  vessels,  and  their  cargoes, 
and  all  goods  and  merchandise  which  may  be  cast  by  the  sea  upon 
the  land,  and  to  this  end  may  employ  as  many  persons  as  he  may 
think  proper.  All  citizens  must  aid  the  sheriff  when  required 
Wrecked  property  may  be  kept  or  reclaimed,  at  the  time  of  the 
wreck,  by  the  owner,  consignee,  or  other  person  entitled  to  the  pos- 
session; but  if  any  person  has  a  just  claim  for  salvage  and  necessary 


WRECKS  389 


expenses  incurred  in  saving  it,  be  must  be  paid  before  the  property 

is  reclaimed.  The  sheriff  of  every  county  in  which  any  wrecked 
property  is  found,  when  no  owner  or  other  person  entitled  to  pos- 
session appears,  must  take  possession  of  it  in  the  name  of  the  peo- 
ple, cause  the  value  of  it  to  be  appraised  by  disinterested  persons, 
and  keep  it  in  some  safe  place  to  answer  the  owner's  claims.  If  it  is 
in  a  perishable  state,  the  sheriff  must  apply  to  the  judge  of  the  Su- 
perior Court,  upon  a  verified  petition,  for  an  order  authorizing  him 
to  sell  it.  If  the  judge  is  satisfied  that  a  sale  of  the  property  would 
be  beneficial  to  the  parties  interested,  he  must  make  the  order  ap- 
plied for,  and  the  property  must  then  be  sold  at  public  auction,  at 
the  time,  and  in  the  manner  specified  in  the  order,  and  the  proceeds, 
deducting  the  expenses  of  sale,  as  the  same  is  settled  and  allowed 
by  such  judge,  must  be  paid  to  the  treasurer  of  the  county.  If, 
within  a  year  after  the  finding,  any  person  claims  the  property,  or 
its  proceeds,  and  establishes  his  claim  by  evidence  satisfactory  to 
the  judge  of  the  Superior  Court,  such  judge  must  make  an  order 
directing  the  officer  in  whose  possession  the  property  or  its  proceeds 
may  be,  to  deliver  the  same  to  the  claimant,  upon  the  payment  of  a 
reasonable  salvage  and  the  necessary  expenses  of  preservation.  Be- 
fore making  the  order,  the  judge  must  require  from  the  claimant  a 
bond  to  the  people,  with  one  or  more  sufficient  sureties,  to  be  ap- 
proved by  th«  judge  and  filed  with  the  county  clerk  (in  a  penalty 
double  the  value  of  the  property  or  proceeds),  conditioned  for  the 
payment  of  all  damages  that  may  be  recovered  against  such  claimant 
or  his  representatives,  within  three  years  after  its  date,  by  any 
person  establishing  title  to  the  property  or  proceeds.  If  the  bond 
becomes  forfeited,  the  judge  of  the  Superior  Court,  upon  the  appli- 
cation, supported  by  proof  of  the  person  entitled  to  the  benefit  of 
it,  must  make  an  order  for  its  prosecution  for  such  person's  benefit, 
and  at  his  risk  and  expense.  The  rejection  by  the  judge  of  any  claim 
does  not  preclude  the  claimant  from  maintaining  action  for  the  recov- 
ery of  such  property  or  its  proceeds  against  the  officer.  If  the 
plaintiff  in  any  such  action  prevails,  there  must  be  deducted  from 
the  damages,  in  addition  to  salvage  and  expenses,  all  the  defendant's 
costs.  Every  officer  to  whom  an  order  for  the  delivery  of  wrecked 
property  or  the  payment  of  its  proceeds  is  directed,  must  present 
to  the  claimant  exhibiting  it,  a  written  statement  of  the  claims  for 
salvage  and  expenses.     If  the  claimant  refuses  to  allow  such  amount. 


390  WRECKS 


it  must  be  adjusted.  If  in  any  case,  the  amount  of  salvage  and  ex- 
penses are  not  settled  by  agreement,  the  Superior  Court  of  the  county 
(or  the  master  or  supercargo  having  charge  of  it  at  the  time  of  the 
wreck,  or  of  a  claimant  having  an  order  thereof  or  of  a  person 
claiming  salvage  or  expenses),  must  determine  it  in  a  summary  way, 
either  by  itself  hearing  the  claims  and  proofs  of  the  party  or  by 
referring  the  questions  to  three  disinterested  freeholders  of  the 
county,  who  must  have  the  same  powers  and  must  proceed  in  the  same 
manner  as  referees  in  civil  actions,  and  whose  decisions  as  to  the 
whole  amount,  and  as  to  the  sums  to  be  paid  to  each  person  inter- 
ested, must  be  entered  as  the  judgment  of  the  court.  The  fees  and 
expenses  of  the  contest  must  be  paid  by  the  person  upon  whose  appli- 
cation it  was  made,  and  are  a  charge  on  the  property  saved.  Each 
referee  is  entitled  to  such  per  diem  and  expenses  as  the  county 
judge  may  deem  just. 

If  within  a  year  after  saving  wrecked  property,  no  claimant 
of  the  property  or  its  proceeds  appears,  or  if  within  three 
months  after  claim,  the  salvage  and  expenses  have  not  been 
paid,  or  a  suit  for  recovery  of  the  property  or  its  proceeds  has 
not  been  commenced,  the  officer  in  whose  custody  it  may  be  must 
sell  it  at  public  auction,  if  not  already  sold,  and  pay  the  proceeds 
of  such  sale,  deducting  salvage  and  expenses,  into  the  treasury  of 
this  state  for  the  benefit  of  the  parties  interested;  but  in  no  case 
must  any  deduction  of  salvage  and  expenses  be  made,  unless  the 
amount  has  been  determined  by  the  Superior  Court  of  the  county, 
a  copy  of  whose  order,  and  of  the  evidence  in  support  thereof,  must 
be  transmitted  by  the  judge  to  the  controller.  If  any  money  paid 
to  a  county  treasurer,  under  these  paragraphs  remains  in  his  hands 
more  than  a  year  after  it  has  been  paid  to  him,  the  same  must  be 
paid  into  the  state  treasury.  Public  notice  of  every  sale  of  wrecked 
property  under  the  provisions  of  this  chapter  must  be  published  by 
the  officer  making  the  sale  for  at  least  two  weeks  in  succession  in 
one  or  more  newspapers  printed  in  the  county  or  if  none  is  printed 
in  the  county,  then  by  written  or  printed  notices  in  three  of  the  most 
public  places  in  such  county,  posted  up  at  least  fifteen  days  previous 
to  such  sale.  Every  notice  must  state  the  time  and  place  of  the 
sale  and  contain  a  particular  description  of  the  property  to  be  sold. 
Every  sheriff  into  whose  possession  any  wrecked  property  comes  must 
immediately  thereafter  publish,  for  at  least  two  weeks  in  succession. 


WRIT  OF  REVIEW  391 


in  one  or  more  of  the  newspapers  printed  in  this  state,  a  notice  di- 
rected to  all  parties  interested,  giving  a  minute  description  of  the 
property,  and  of  every  bale,  box,  case,  piece,  or  parcel  thereof,  and 
of  the  marks,  brands,  letters,  and  figures  on  each,  and  stating  where 
the  same  then  is,  and  its  actual  condition,  and  the  name,  if  known, 
of  the  vessel  from  which  it  came,  her  master  and  supercargo,  and  th« 
place  where  such  vessel  then  is,  and  her  actual  condition.  The  ex- 
penses of  publishing  notices  under  these  provisions  is  a  charge  upon 
the  property  or  proceeds  to  which  it  relates. 

A  marine  carrier  must  not  stow  freight  upon  deck  during  the 
voyage,  except  where  it  is  usual  to  do  so,  nor  make  any  improper  de- 
viation from  or  delay  in  the  voyage,  nor  do  any  other  unnecessary 
act  which  would  avoid  an  insurance  in  the  usual  form  upon  the 
freight. 

Writ  or  Mandate,  or  Mandamus,  may  be  issued  by  any  court  (ex- 
cept a  justices'  or  police  court) ,  to  any  inferior  tribunal,  corporation, 
board,  or  person — to  compel  the  performance  of  an  act  which  the 
law  specially  enjoins,  as  a  duty  resulting  from  an  office,  trust  or 
station;  or,  to  compel  the  admission  of  a  party  to  the  use  and  en- 
joyment of  a  right  or  office  to  which  he  is  entitled,  and  from  which 
he  is  unlawfully  precluded  by  some  inferior  tribunal,  board,  cor- 
poration, or  person.  The  writ  must  be  issued  in  all  cases  where  there 
is  not  a  plain,  speedy,  and  adequate  remedy,  in  the  ordinary  course 
of  law.  It  must  be  issued  upon  the  verified  petition  of  the  party 
beneficially  interested,  and  may  be  either  alternative  or  peremptory. 
The  alternative  writ  must  command  the  party  to  whom  it  is  directed 
immediately  after  the  receipt  of  the  writ,  or  at  some  other  specified 
time,  to  do  the  act  required  to  be  performed,  or  to  show  cause  before 
the  court  at  a  specified  time  and  place  why  he  has  not  done  so.  The 
peremptory  writ  must  be  in  a  similar  form,  except  that  the  words 
requiring  the  party  to  show  cause  why  he  has  not  done  as  command- 
ed must  be  omitted  and  a  return  day  inserted. 

Writ  of  Mandate,  or  Mandamus,  may  be  issued  by  any  court  (ex- 
a  justice's  or  police  court),  when  an  inferior  tribunal,  board,  or  offi- 
cer— exercising  judicial  functions — has  exceeded  the  jurisdiction  of 
such  tribunal,  board,  or  officer — and  there  is  no  appeal,  nor  (in  the 
judgment  of  the  court)  any  plain,  speedy  and  adequate  remedy.  The 
application  must  be  made  on  the  verified  petition  of  the  party  bene- 
ficially interested,  and  the  court  may  require  a  notice  of  such  appli- 


392  WRITINGS 


cation  to  be  given  to  the  adverse  party — or  may  grant  an  order  to 
show  cause  why  it  should  not  be  allowed,  or  may  grant  the  writ  with- 
out notice. 

Writinc  includes  printing  and  typewriting.     See  Negotiable  Instru- 
ments, 1(3082. 


LAW    LIBRARY 

LOS  ANGELES  COUNTY 


LAW  LIBRARY 

TOttVEBSITY  GF  CALIFORNIA 

LOS  ANGELES 


AA    000  769  856 


t*  '"    ^ 


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